Erection of scaffolding

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  • Erection of scaffolding

    I have ashop ina larger building . The landlord erected scaffolding around the who;e building blocking the retail shops . I wrote to him complaining that my business turnover had been reduced. I requested buta rent reduction during the works but he refused . He asked to see my bank staements as proof at which i refused. This has dragged on 6 months now and i have witheld rent until we can agree. I feel the landlord hs breached my quiet enjoyment and i am due some kind of reduction or compensation. He admitted in writing that he had told me about the building works on the upper floors but failed to tell me about the scaffolding and aplogised for doing so . How do i stand if he takes me to court for the rent arrears ?

  • #2
    Does the scafolding prevent people walking into your shop. ?
    Are you forced to close because no one can enter your shop ?

    Describe to us members how one repairs a building without saffolding.
    You cannot with hold rent. He will win in court.
    You can complain later that you suffered GREAT loss if scaffolding
    prevented people entering the shop, and seek compensation,
    but do not withhold rent.

    R.a.M.

    Comment


    • #3
      Check your lease to see if you are allowed to withhold rent for set-off. If not then pay the rent, and issue proceedings for breach of quiet enjoyment, presupposing there's nothing in the lease enabling the landlord to carry out works to the rest of the building.

      Loss of trade for scaffolding might be just one of things.

      Comment


      • #4
        Originally posted by leonuk View Post
        He asked to see my bank staements as proof at which i refused.
        Look at it from the landlord's point of view: if you do not prove a loss of earnings how can he reasonably be expected to pay compensation? If the landlord has breached his covenant for quiet enjoyment it is a breach of contract and you are entitled to damages equal to your loss and no more. You need to show your loss.

        Comment


        • #5
          Yes in court you would have to produce your bank statements, I think this is a pretty reasonable request to prove you are not committing fraud, if you were trying to obtain money by deception then be very careful.

          Comment


          • #6
            Your landlord may just instruct bailiffs to come and distrain on rent... doubt he'd need a court order to do that, costs will be extremely high.
            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

            Comment


            • #7
              Thank you for all replies. I have no problems showing bank statements but I have other businesses all in the same bank account. I did show individual turnover figures which he dismissed. I was and am fully prepared to pay rents that are due but also expect compensation for loss of profits and damage caused to the business. Customers are hard to win but very easy to lose.
              The original notification was conversions to the upper floors to flats would take place and rear access would not be available for parking purposes. No mention of scaffolding covering my frontage so I presumed all work would be at the rear and interior of the upper floors. At a later date the landlord did apologise. From other research some sources are saying the landlord should have advised me of any work that may interrupt my business . The access to the shop was reduced and the poles stopped the street cleaners doing their job so the footpath was a mess. Many passers by commented how the area had become run down. The frontage was pressure washed causing sand and water debris to be left on the footpath and my signage and windows.
              From the start of the 3rd week my turnover reduction was noticeable which I pointed out . I suggested a rent reduction during works and mentioned how I would be compensated for loss of business. This was refused even though it was blatantly visible how dirty and run down looking the street had become.
              Points made regarding the lease do not apply as the landlord took over from a previous owner and the original lease expired and never renewed.

              I am a very reasonable person and all I wanted to do was carry on my business. Built up this location from nothing in 6 years then destroyed in 6 months. Does the law allow a landlord to rent a premises interfere with its use severely and then expect the tenant to earn the money to pay the rent .

              Comment


              • #8
                We all sympathise with your loss of business and none of us would
                want to be in your shoes.
                But as I said before, how can you carry out work on a building
                without scaffolding, if scaffolding is required.
                Even if the landlord told you that scaffolding would be required in
                front of your shop, you would still be in the same possition.

                To repair a building, scaffolding is a necessary evil.

                If you try and take it further, even to court, the judge may ask,
                what was your impediment that prevented you from using a brush,
                and if you were physicaly unable to use a brush, why did you not
                employ someone to brush up the mess, to clear the pavement
                outside your shop to enhance the entrance at £ 10 per hour
                ( retired handyman )
                Or why you could not with a long mop, clean the signage and
                windows.

                We have builders coming here ( Private ) and I bend my back and
                brush up every day for no payment whatsoever.
                Then I may have to use a hose to get rid of remnants of sand.
                That's what you have to do when your building becomes a
                building site.

                You have my sympathy, but sounds like you did nothing to make
                the place tidier, knowing it was a mess.

                The above ( brush ) may be put to you in any further dealings
                with the landlord or courts. But you don't want to be seen as
                a "Well, I'm not going to brush up, even if by not doing so, I
                lose customers", as you will get no sympathy from those you
                are complaining to.

                I know I have added insult to injury, but see it from the point
                of the landlord who MUST have scaffolding.

                R.a.M.

                Comment


                • #9
                  Goldmile Properties Ltd v Lechouritis [2003] found that quite extreme interference with a ground floor tenants business was acceptable.

                  THE CODE OF PRACTICE FOR LEASES

                  Recommendation 11 of the code of practice for leases states that when either party proposes to take action which is likely to have significant consequences for the other, that party should when appropriate notify the other without undue delay. It is also laid down in recommendation 20 that landlords should observe the (separate) service charge code.

                  Recommendation 38 of the service charge code states that "when substantial works are planned, the process should be communicated to provide full information on the programme of works, costs and process to be adopted for keeping occupiers informed".
                  [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                  Comment


                  • #10
                    Per Goldmile (for the benefit of the op):

                    The case centred on construction works carried out by the landlord, Goldmile Properties Ltd, on premises known as the Crazy Creek Tavern, at Newton House, Scotland Road, Warrington. The then lessee, Speiro Lechouritis, claimed that the works caused dust problems inside the restaurant, severely diminished lighting, and generally made the property a less pleasant environment in which to work and dine. In the Court of Appeal, Nicholas Dowding QC, counsel for the landlord, said that the case raised an important point of principle. He claimed that the county court decision meant that “where a landlord carries out his repairing obligations under a lease and, in the process, substantially interferes with the tenant’s right of quiet enjoyment” that will constitute a breach of a standard-form covenant for quiet enjoyment, regardless of the fact that the interference was a necessary and unavoidable consequence of carrying out of the repairs. However, David Berkley QC, counsel for the tenant, argued that the test for breach of a lease covenant was objective, and that acting reasonably was no defence. Allowing the appeal, Sedley LJ held that the landlord had taken all reasonable steps to minimise the potential risks. He said: “It would have been apparent that the tenant’s enjoyment of the demised premises might be made temporarily less quiet and less profitable by the carrying out of structural repairs. It would similarly have been clear that the lessor’s rights and obligations were neither to ride roughshod over the lessee’s entitlements, nor to be unreasonably impeded by them."

                    Comment


                    • #11
                      How long was the scaffolding erected - was it for 6 months or is it just your dispute that has dragged on for six months?

                      As others have pointed out, if the work was required for the LL to carry out his repair duties, then you have no case after the fact. However there could be a case if the scaffolding was there longer than necessary or reasonable for the repairs.

                      Also it is an important principle of contract law that you can only be compensated for actual loss, compensation for lost profits is not usually available - so you would need to have excellent proof that your business suffered an actual loss. There has been a exception to this however (in the case of the MI6 spy Blake and also the Jimi Hendrix Estate case) where the party in breach makes a gain on it, they can be made to pay an amount equal to what should have been paid to you in order to vary the terms of the tenancy (in this case the implied covenant of quiet enjoyment). This has only been successful in very exceptional circumstances though, pretty unlikely here as it doesn't seem like a blatant breach (if it is a breach) for profit.

                      If you had spent money on extra street cleaning, on signage, extra advertising hoardings, etc then this would probably be more easily recoverable as actual loss, but the court would be entitled to conclude that you should have taken action at the time - i.e. by seeking an injunction against the LL to remove or mitigate the scaffolding.

                      From the facts you have given, you are probably going to have to put this one down to experience. At least presumably the building now looks better for the work?
                      caveat emptor
                      If it sounds like I know what I am talking about........I don't.

                      Comment


                      • #12
                        FYI....I was outside every day at 7:30 cleaning my footpath (maybe 12-15 feet width) the site was approx. 100-120 feet. Was I meant to do all of this ?The whole length of the work looked run down and uninviting.
                        I had no notice of any sort that scaffolding was to be erected surely there if some kind of duty to notify me. I agree the giving of notice was irrelevant as I would still have the same problem but at least I would of had the choice to move out and not have the worry of how to keep my business going while the work to flats above and around me, that had nothing to do with repairing the building, carried on.And have the privilege of being unable to do anything about it and cost me money .

                        I just don't understand English law !!

                        Sorry if I sound bitter or down but I do appreciate all comments and info

                        Comment


                        • #13
                          The work was not for repair duties as far as I can understand . It was a conversion to flats . Nothing wrong with the building . The scaffolding was there for 6 months give or take a day or two . Mid June to late November.
                          To me converting the upper floors to flats made the landlord a vast profit but he still wants money from me after causing ne problems .

                          I am not looking to gain lost profits just a common sense attitude of I(the landlord ) caused you inconvenience so I will not expect full rent to be paid
                          I would be happy to call it a day and have a clean break making no claims to the landlord and move on to another premises having learned a hard experience

                          Comment


                          • #14
                            As they say, the law is frequently an ass. But if your losses are great, then you should should consider going to a solicitor who specialises in commercial leases, there may be something deep within the Landlord and Tenant Act and its amendments which gives a straightforward remedy for this breach of this covenant.

                            From just my knowledge, I would say that if the work was not necessary to discharge his covenant to you (to maintain the building) and it was done for profit, then you should have a case. Damages would probably be limited to the amount the Landlord should have paid you to negotiate a variation to your covenant of quiet enjoyment. But... as far as I know this has only been used successfully in the higher courts in 'exceptional' circumstances. However the only 'exceptional' circumstances I can see are that the plaintiffs had very expensive lawyers. But you could try.

                            No need to apologise for being bitter - just remember we only have the facts you post on here to go on - sometimes the advice can come across a little cold.

                            If you are intent on moving this could prompt the LL to offer you a better deal depending on where you are - i.e. how hard is it to get commercial tenants? I had to offer very good terms just to get mine filled due to high vacancy rates, but as the business takes root it should pay its way (low rent initial period as a sweetener).

                            Good luck, and remember to update the thread if you get any better advice or a solution from the LL.
                            caveat emptor
                            If it sounds like I know what I am talking about........I don't.

                            Comment


                            • #15
                              I've done a bit more thinking on this - I have a building where a similar issue could occur, so it was worth it to do a bit of reading.

                              First Southwick London Borough Council v. Tanner (1999) established that a covenant for quiet enjoyment could be breached by carrying out structural repairs or maintenance. However Goldmile Properties v. Speiro Lechouritis (2003) (identified by rentreviewspecialist above) found that quiet enjoyment must be weighed against the LL covenant to repair. You'll note the similarity of Goldmile to your case, both in extent and duration. If your LL undertook the works to repair or maintain, then this is where your case would end.

                              However, as the LL undertook the work for his reasons then the covenant to repair is irrelevant. Unfortunately I can't find a case that has this circumstance. Anyone help?

                              So, you probably have a case, maybe even one that could make the law reports if it is a new application of Goldmile. Won't be a cheap and easy case, but that goes for the LL too so if you appoint a solicitor he may settle.

                              Good luck if you go through with it.
                              caveat emptor
                              If it sounds like I know what I am talking about........I don't.

                              Comment

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