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

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    #46
    I recommend that you consider 3 things before sending a letter.

    Firstly, how do think that the freeholder will respond?

    Secondly, to what extent are you prepared to argue your case? Are you going to receive any support from your neighbours or will they not wish to get involved?

    Finally, would you be happy for the letter to be produced in Court or at a Tribunal as a letter originating from yourself?

    Your strategy should be determined from the outset and your response to the above may assist you to decide.

    I am unhappy with the previous correspondence, you were told that dogs were not allowed on site and your reply may be construed as you being aware. Also you are not exactly saying that the dogs are well behaved and that no-one notices them, you are implying, maybe unintentionally, that there could be complaints.

    As for the advice from Lawcruncher, you have been told to “never say more than you need” yet the proposed letter does just that, all you need say in response to the letter is that you deny that you are in breach of the lease.

    You have been told that a court may not find that a landlord has to be reasonable, so why say that “the opinion must be reasonably formed”?

    If you need more time to consider, you can acknowledge receipt of the letter within 7 days and say that you are seeking advice and will write further.

    Comment


      #47
      eagle2 I'm willing to go to Tribunal, and I'm confident in the support of my neighbours (they've already started a petition to allow us to keep them). I can't see any way the letter would prejudice my case - can you?

      Given that our Freeholder has clearly decided to throw as much legal nonsense at the residents as he possibly can in the hope that some of it sticks (he's also triggered Major Works Notification) I think my only option is to go back hard. I cannot rely on him to be reasonable, and the only option I have is to either give in, or be prepared to fight at Tribunal.

      Is there a better alternative? I cannot see one.

      Comment


        #48
        That’s fine, it is your decision and it is helpful that your neighbours are supporting you, I assume that they will be able to say that dogs have been allowed to stay in the past.

        If the freeholder is acting unreasonably, that works in your favour and I would wait for the freeholder to apply to a Court or a Tribunal.

        Just be prepared to explain your previous statement that the dogs were staying only on a temporary basis.

        Comment


          #49
          Cool. I think I follow your logic now, I wasn't making the connection before. Appreciate your patience.

          The dogs are in fact still staying on a temporary basis - they're fosters, we've not adopted. Unfortunately it's harder than anticipated to get a forever home for two bonded doggos, even ones as adorable as ours. I can also get statements from the foster agency to confirm we've only had one offer for a forever home in the six months we've owned them, which pulled out. And yes, they'll corroborate that other residents owned dogs without issue in the past too. So hopefully we're more or less covered if they do decide to Tribunal it.

          Thanks again.

          Comment


            #50
            Originally posted by Benzo View Post

            I had a fairly good relationship with the managing agent at the time, and he'd often pop round. On one of those occasions he saw the dogs and asked about them - the general impression I got was that he regarded it as 'a bit naughty' but there was no talk of a lease breach at the time. He did complain about the upstairs dog, who was a yappy little nightmare, but that was it.
            Any idea if the upstairs dog is still there? Have they been served with any notice?

            Digressing, I am just curious, I thought that you needed a house with a garden to foster a dog so that it had space to run around.

            Comment


              #51
              The guys from upstairs moved out just before Christmas, but they had been there for three years and our MA had met the dog several times with no notice served. At least two residents have dogs in the block with no notice served, but I'm not sure if they'd be willing to go on record as they'd effectively be asking for the same treatment - still, I will try.

              I'm on a ground floor flat; our front door directly opens into a private grassy area, so we do have space - and that is a crucial thing that they're looking for. However as its shared we keep the dog down 'our' corner of the garden, make sure any grossness is immediately cleared up, and make sure they get all their exercise during walks. We have some families who are nervous around dogs so need to be mindful. Owning dogs in flats is possible but you haev to be lucky with the space and mindful of the fact that you have people all around you.

              Comment


                #52
                Lawcruncher,

                Thank you again for your advice. We have received a response, which is as follows:

                Kindly note that our interpretation of the Lease provision differs. The relevant clause at Clause 6 of the Third Schedule, contains the covenant that “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”.
                Clause 2 of the Third Schedule states that the tenant is “not to use or permit to be used the Flat or any part thereof or the other parts of the Building used by the Lessee in common as aforesaid for any purpose from which a nuisance can arise to the Lessor or to the owners lessees and occupiers of the other flats comprised in the Building or in the neighbourhood nor for any illegal or immoral purpose”. A copy of the Lease has already been provided to you.

                We consider that Clause of the 3rd Schedule contains an absolute prohibition on the keeping of an animal which the Landlord’s considers may cause a nuisance. The clause does not require communication of said opinion or the fact of a nuisance to have been caused. In effect it is a matter for a Tenant who wishes to keep a pet to approach the Landlord to obtain the necessary permission and consent in view of the prohibition.

                In any event it is our client’s position that a nuisance has been caused and you may note that the matter was brought to the attention of our client’s agent through a complaint from an occupier of fouling of the dog within a communal area. Our client also considers that nuisance has been suffered by it as the presence of the dog has caused interference with its management of the property as cleaners appointed by our client’s agent were not permitted to spray weed killer in the gardens for the benefit of the dogs. We understand that you had previously misinformed our client’s agent on 30th January 2018 that the dogs would be removed in a couple of weeks. You therefore have been made aware of the Landlord’s concerns.

                Our client seeks to apply the regulations of the estate to all residents equally and the restriction on dogs needs to apply to all residents.

                Under the circumstances, our client considers that the lease has been breached by the reasons noted above and requires an admission or determination of same. Once the breach is admitted or determined our client will then consider steps required for the remedy of the breaches in so far as they are capable of remedy and allow a reasonable period for same. In the absence of an admission our client will initiate proceedings to obtain a determination of the breach of lease pursuant to an intention to serve notice under S.146 of the Law of Property Act 1925.
                Leaving aside the annoyance clause, which I think is arguable, and the nuisance clause, which I think is inappropriately quoted here, I am glad to get a bit more information on this - it actually seems like a more reasonable email than previous. Few immediate responses:

                - this is my first time hearing about a resident complaint, and if true I'm mortified. In January I told our MA that I didn't want to upset my neighbours and to let me know if there'd been a complaint in which case I'd expedite the adoption process, nothing since. We do our best to clean up any mess immediately It's also unlikely since we ensure our dogs poop outside the block where possible, and we clean it up immediately where not possible - however it's not completely impossible.
                - other dogs ARE kept in the block. There's one in the front block, and one in the rear block. Trouble is, providing evidence for this would involve possibly putting other residents at risk of legal action which I really don't want to do.
                - the issue with the weed killer is not actually related to the dogs. Residents pay for gardening in the communal area, not weed killer, and there's a real pushback against these sorts of cost cutting exercises. We did not stop the cleaners from putting weedkiller down - we were asked if we wanted it, and replied in the negative. However, again, I don't want to get the cleaners into trouble, they have enough to deal with.
                - there was no 'misinformation' from me. Our dogs are fosters, and we were told by the agency that they'd be with us for a few weeks. Sadly it's been harder than they thought to find forever homes; we've had one offer which withdrew almost immediately. I'd have been happy to discuss this with our MA at any time but they've been very uncommunicative since we issued our RTM claims.

                If you have any suggestions on how to respond I'd be very grateful - but am also aware that you've already helped me out tremendously already.

                Comment


                  #53
                  It is not surprising that the freeholder has informed you of his opinion that your dogs are likely to cause a nuisance, that was only to be expected.

                  I disagree with the letter, there is no obligation to “obtain the necessary permission and consent”, it is the freeholder’s responsibility to inform you of his opinion.

                  You will need to deny that a nuisance and a complaint were brought to your attention by the MA.

                  If the freeholder ensures that the rule applies to the entire estate, you can no longer rely on the argument that the freeholder is treating you unfairly.

                  Having been informed of the freeholder's opinion now, I would take steps to rehome the dogs because otherwise you will be in breach of the terms of your lease.

                  I look forward to Lawcruncher’s comments.

                  Comment


                    #54
                    Thanks eagle2, agreed on all. The dogs are fosters so we are in effect still looking for a forever home for them, and I need to decide whether or not to inform the lawyer of the other dogs on the estate (which would prove I'm being treated unfairly), but everything else seems reasonable to me. Appreciate the time.
                    Last edited by Moderator2; 27-07-2018, 08:05 AM.

                    Comment


                      #55
                      I suspect that a notice will be put up or a circular will be issued by the MA. In the meantime, you can point out that other dogs exist on the estate (I would not name the leaseholders or tenants) but I would not expect it to assist you other than perhaps buy you some more time.

                      Comment


                        #56
                        I shall consider the letter and compose a reply.

                        While I was in England I was able to find a copy of Words and Phrases Legally Defined and unfortunately it was of no assistance. The library I visited did not have a copy of any of the standard works on landlord and tenant law available for me to consult.

                        Comment


                          #57
                          Thank you Lawcruncher , your reply is much appreciated. I've had no luck either. My instinct is to ask for as much information about this complaint as possible because it's the first time anyone's mentioned such a thing, but I will obviously hold fire until I hear from you. Your time, and your kindness, is appreciated.

                          Comment


                            #58
                            I am surprised that the freeholder has given any details, all he needed to say was “in my opinion, your dogs may cause a nuisance”. Obviously he was not advised by Lawcruncher to state the minimum.

                            You stated before that you specifically asked the MA to let you know if there were any complaints so it does make you wonder if the current complaint is genuine but the freeholder does not need to provide evidence of an actual complaint.

                            You could also argue that he ought to have been aware (via the MA) that dogs have been allowed to be kept for some time (how long?) and to suddenly announce that all dogs are no longer permitted is extreme and unreasonable.

                            He has not said how long you have to comply with his new regulations.

                            Whether or not it helps you or only buys you time remains to be seen. How are you progressing with the RTM procedure?

                            Comment


                              #59
                              Good points all. Our counter-claim period ends on the 30th of this month, so we'll know within a week if they intend to fight it.

                              Agree on the change to policy - I've got statements prepped from the dog owners who're willing to share emails from the MA talking about how much he liked the dog so that should be fairly simple.

                              The thing I'm not sure on is regarding the complaint. I'm not sure how it works in property but in my work, if someone makes a complaint about you, you're entitled to know the details - what was seen, where it was seen, what the evidence is. You're not necessarily entitled to know who made the complaint, but you are entitled to details. I'm interested in this because I wonder if the complaint - if genuine - is a) my due to my dog or b) due to a dog at all. If it was a dog, there are two in the block. If it was just that some poop was found, it won't be my dog because where they do have accidents, we clean them up immediately. Moreover, we have two 'communal areas' - cats and foxes use the rear one to poop, and humans use the front one for same. If they've just found some poop, it won't be ours.

                              I never thought that at 42 years old I'd have to become very interested in where and when poop was deposited. Welcome to Leasehold!

                              Comment


                                #60
                                You have humans crapping in the communal areas?!

                                I think I'd move Benzo.
                                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

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