The phrase 'in the opinion of the Lessor' - any evidence required?

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    The phrase 'in the opinion of the Lessor' - any evidence required?

    Hi all

    We have a few clauses in our lease which contain the phrase 'in the opinion of the Lessor'. Is there a legal definition of what this opinion should be based on? In a Tribunal setting, would this opinion require evidence, or reasonable supposition, or can it be merely stated?

    For background, I'm specifically thinking with regards to pets. I've always read our lease as allowing animals unless they create an annoyance for other residents, which I think is sensible. However, on re-reading I'm struck by that phrase in the middle:

    no bird dog or other animal which in the opinion of the Lessor may cause annoyance to any other lessee or occupiers of the other flats comprised in the Building shall be kept in the Flat.
    I'm wondering to what extent that opinion must be informed by evidence or experience - i.e. whether or not the residents themselves are actually annoyed - or if its more a potential annoyance.

    I ask because I have two silent, well behaved foster dogs who are never left alone, who do not foul the common areas, and who are very popular with our neighbours. When this potential breach was raised to me by the managing agents, I expressed desire to comply with the nuisance clause - I've no wish to annoy my neighbours - and have said I will get rid of the dogs if they're creating complaints, and to keep me posted. That's the last I'd heard of it for six months.

    Then today I received an email stating that I was being charged £200+VAT 'for the initial breach' and that solicitors had been appointed to deal with the breach. This feels a bit heavy handed, and I believe it to be a retaliatory act (as we are in the process of taking RTM for our block, and because other residents have owned dogs / cats / hamsters for many years and with the managing agents knowledge without such legal action being taken).

    But there's also a good chance that I'm hoping for some wiggle room that isn't present, because I've grown to love these dogs. I would very much value your input.

    #2
    Was this email from the freeloader you just beat in court?
    To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

    Comment


      #3
      Two dogs in a flat (where the lease says you should not annoy) sounds pretty antisocial to me. It would hardly be popular in any flat I own. How do you know that a lessee has not complained?

      Comment


        #4
        Originally posted by JK0 View Post
        Was this email from the freeloader you just beat in court?
        Good memory. Yes, that's the one - we also reissued our RTM claim this week. I found the timing suspicious, especially since many other residents keep pets long term (dogs, cats, hamsters) to the managing agents knowledge and none have ever been presented with such action.

        Comment


          #5
          Oh, well, it's just sour grapes. I suggest you make an application to the FTT for a determination of the breach.
          To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

          Comment


            #6
            Originally posted by AndrewDod View Post
            Two dogs in a flat (where the lease says you should not annoy) sounds pretty antisocial to me. It would hardly be popular in any flat I own. How do you know that a lessee has not complained?
            Yes, two dogs is not ideal - our mitigation is that they are silent, short-haired, never left alone, and we're on the ground floor so no downstairs neighbours to be annoyed by the 'tappity tap' of tiny paws on their ceiling. I wouldn't say it was antisocial myself but obviously I'm biased, which is why I appreciate your response.

            I can't be 100% sure that no-one has complained but two main things lead me to believe that they have not:

            1. The MA tends to offer evidence of complaints where they have it, they're not very discreet - they've not done so, not even made a statement that someone had complained. The email I got was just about a lease breach.
            2. We have a very close knit community in our block due to antisocial behaviour and mismanagement, and residents tend to stick together, and resolve issues between ourselves. We meet up once a month - the only time the dogs have come up has been residents asking to help dogsit

            I think ultimately much of what I'm asking here is, what happens now. I think it's clear - if someone has complained then I need to get rid of them. Painful though it would be, I'd do it, and I've offered to do it. But if no-one has complained, and this is just a punishment tactic from our managing agent, I want to know how to fight it. Hope that makes sense.

            Comment


              #7
              No one has answered the question you posed in the first paragraph of post 1, That is probably because, like me, they are not sure of the answer. It is not a question I ever had to answer in practice. Whenever I came across the phrase in a draft lease I always amended it to either "in the reasonable opinon of the landlord" or "in the opinion of the landlord acting reasonably". There is though no saying that a court would find that the landlord has to be reasonable. Googling has not come up with an answer. I recommend you go to your nearest reference library and see if they have Words and Phrases Legally Defined and see what the entry on "opinion" (or perhaps even "reasonable opinion") says.

              The wording of the clause presents a bit of a conumdrum. The obligation is not to refrain from keeping animals which cause annoyance, but to refrain from keeping animals which in the landlord's opinion may cause annoyance. Strictly therefore a tenant can be in breach without knowing it if the landlord has not told him what his opinion is. In practice though I think the landlord has to make his opinion known to the tenant before the tenant can be in breach. It can also be noted that if the tenant keeps animals which actually cause annoyance, but the landlord expresses the opinion that they do not, then there is no breach. Not great drafting.

              Even assuming you are in breach, the landlord cannot just pluck a figure out of the air and demand you pay it.

              My suggestion is simply to ignore the landlord's demands until you receive a solcitor's letter. If you do, let us know what it says.

              Comment


                #8
                There are 2 ways to read the paragraph.

                1. No Birds or Dogs at all...also no other animal which may cause annoyance in opinion of FH

                or

                2. No animal which may cause annoyance in opinion of FH.

                Is their any punctuation missing from your quote ?

                If the latter does the FH need some sort of proof, or is it reasonable to just say no to all dogs, full stop, dogs can (and prob are in the majority of cases) liable to cause annoyance, even if its the occasional rare bark.
                Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

                I do not accept any liability to you in relation to the advice given.

                It is always recommended you seek further advice from a solicitor or legal expert.

                Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

                Comment


                  #9
                  People who draft leases do so with typewriters that have no full stop or comma keys! You do not expect to find punctuation in leases.

                  I believe the intention is closer to (2), but animal needs to be read as including birds.

                  I believe the intent is to avoid the need to take things to arbitration, by allowing the FH to be judge and jury in any disputed case. Part of the idea is probably that the freeholder is more likely to be a neutral party (and also they are the ones who have to take legal action, so they will be more aware of its costs).

                  However, I think one might have a case for an unreasonable administration charge, if the FH really hasn't previously stated that they consider the dogs to be causing an annoyance.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    No one has answered the question you posed in the first paragraph of post 1, That is probably because, like me, they are not sure of the answer. It is not a question I ever had to answer in practice. Whenever I came across the phrase in a draft lease I always amended it to either "in the reasonable opinon of the landlord" or "in the opinion of the landlord acting reasonably". There is though no saying that a court would find that the landlord has to be reasonable. Googling has not come up with an answer. I recommend you go to your nearest reference library and see if they have Words and Phrases Legally Defined and see what the entry on "opinion" (or perhaps even "reasonable opinion") says.

                    The wording of the clause presents a bit of a conumdrum. The obligation is not to refrain from keeping animals which cause annoyance, but to refrain from keeping animals which in the landlord's opinion may cause annoyance. Strictly therefore a tenant can be in breach without knowing it if the landlord has not told him what his opinion is. In practice though I think the landlord has to make his opinion known to the tenant before the tenant can be in breach. It can also be noted that if the tenant keeps animals which actually cause annoyance, but the landlord expresses the opinion that they do not, then there is no breach. Not great drafting.

                    Even assuming you are in breach, the landlord cannot just pluck a figure out of the air and demand you pay it.

                    My suggestion is simply to ignore the landlord's demands until you receive a solcitor's letter. If you do, let us know what it says.
                    This is an astonishing reply and I will read it, re-read it, commit it to heart, and tattoo it on my chest. Thank you. If I could like this comment a hundred times I would.

                    Comment


                      #11
                      Originally posted by leaseholder64 View Post
                      I believe the intent is to avoid the need to take things to arbitration, by allowing the FH to be judge and jury in any disputed case. Part of the idea is probably that the freeholder is more likely to be a neutral party (and also they are the ones who have to take legal action, so they will be more aware of its costs).

                      However, I think one might have a case for an unreasonable administration charge, if the FH really hasn't previously stated that they consider the dogs to be causing an annoyance.
                      Unfortunately we have a problem Freeholder who holds grudges.

                      So while I don't relish appearing at court, I would actually much prefer arbitration as I believe the First Tier Tribunal is more likely to be reasonable.

                      If I am called to appear I will certainly challenge the unreasonable admin charge - good shout.

                      Comment


                        #12
                        Usual advice here is to pay up, and challenge in the FTT to avoid solicitor fees and court costs being added on.
                        To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

                        Comment


                          #13
                          Originally posted by JK0 View Post
                          Usual advice here is to pay up, and challenge in the FTT to avoid solicitor fees and court costs being added on.
                          Fortunately the fine to my account (which doesn't come up for payment until the end of the year) so I've a bit of time before they can get me on non-payment. I don't see how I can negate their solicitor fees in any way except to go via Tribunal tho? Apologies if I'm missing something.

                          Comment


                            #14
                            Originally posted by Benzo View Post

                            Fortunately the fine to my account (which doesn't come up for payment until the end of the year) so I've a bit of time before they can get me on non-payment. I don't see how I can negate their solicitor fees in any way except to go via Tribunal tho? Apologies if I'm missing something.
                            Yeah, exactly. That's why I suggest the tribunal.
                            To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

                            Comment


                              #15
                              Originally posted by JK0 View Post

                              Yeah, exactly. That's why I suggest the tribunal.
                              Gotcha. Sorry, wasn't sure if I was following and wanted to confirm. Appreciate the clarification.

                              Comment

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