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

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    #61
    Lol yeah, at least once a month; our block has a reputation among the local heroin users as being a safe place to shoot up. Managing agents been aware since 2011 but they refuse to repair our security gate without a £10k a year bung (to 'compensate' the freeholder for the 'loss' of his car parking business). It's completely unethical but I've spent the last year and a half documenting the antisocial behaviour, and I'm now confident I can argue that it makes for a legal nuisance at Tribunal. Honestly, I was hoping to just get our RTM and leave all this stuff in the past, but they clearly want a bit of a scrap.

    Comment


      #62
      Draft letter for discussion:

      Thank you for your letter of [insert date].

      Your comments on paragraph 6 of the Third Schedule to the lease are noted. I cannot possibly agree with your contention that the landlord does not have to communicate his opinion to the tenant. The clause divides birds dogs and other animals (“animals”) into two classes: (a) those which the landlord considers may cause annoyance and (b) those which the landlord does not consider may cause annoyance. A tenant has no way of telling which animals fall into which class unless the landlord tells him. It would be wholly unreasonable if the landlord could form his opinion as to which animals came in which class, fail to communicate it to the tenant and then start proceedings against the tenant for breach of covenant for keeping animals he considers may cause annoyance.

      Any opinion which the landlord communicates to the tenant must be reasonable and must also be his genuine opinion and not what he merely asserts is his opinion. If that were not the case then the landlord could say that in his opinion all animals may cause annoyance and that would amount to an absolute ban on animals; if that was what was intended it is what the lease would have said.

      Clause 2 does not present any significant problems of interpretation so long as it is accepted that “nuisance” means a legal nuisance, that is some act actionable as a tort. I deny that I have committed any nuisance. Your letter is the first I have heard that anyone has complained about the dogs. The idea that objecting to the use of weedkiller amounts to a legal nuisance cannot possibly be sustained. For the record, the residents generally were asked if they wanted weedkiller using and they said they did not. Dogs had nothing to do with it.

      I did not misinform the agents. I am fostering the dogs. It was orginally expected that they would be with me for only a few weeks, but so far a place has not been found for them. If the dogs barked continuously or were aggressive I would not hesitate to make alternative arrangements for them, but they are no trouble to anyone. The demand that I stop looking after them cannot be justfified. I have tried to discuss the issue with the managing agents, but they decline to engage with me.

      Comment


        #63
        Lawcruncher,

        That is amazing. I will absorb and come back - my heart is racing a little now. Thank you, thank you.

        Comment


          #64
          Thank you Lawcruncher , this has been such a help. I had been drafting a letter on the same points and you've covered them all so much better than I'd have managed. I wondered if I should add these points:

          - should I mention there are at least two other dogs here, one very well known to the MA who has accepted their service charges for the last four years, and who have received no similar letter? as I believe this establishes a precedent?
          - should I request confirmation that the complaint came from a resident, as I am not 100% sure this is accurate, and it may put them off if they're making it up. I know from talking to them that the MAs actually had to call their cleaners into the office and demand to know if the dogs were still there, which surely wouldn't have been needed if a complaint had been raised?

          What do you think?

          Comment


            #65
            I think you should save those points for later if you get a response. The object at this stage is to show that you are not going to be browbeaten into submission just because you have had a couple of solicitor's letters.

            Remember that a landlord cannot serve a section 146 notice unless the tenant admits the breach or the landlord gets a ruling from a tribunal that the breach has occurred. You are not going to admit there has been a breach. If the landlord wants to take it further he will have to go to the tribunal. What benefit will the landlord obtain if he does and manages to win? Not a lot. You therefore have to ask whether there is any real prospect of the landlord taking it further.

            Comment


              #66
              Thank you. I will send as written.

              Out of interest, did you find it as odd as I did that they both interpret the lease as containing an absolute prohibition on animals, but also suggest that residents should seek the 'necessary permission and consent' for same? I'm no expert on this but wouldn't an absolute prohibition be, well, absolute? This feels like a contradiction to me!

              Comment


                #67
                The whole letter was a bit ridiculous.

                Comment


                  #68
                  Originally posted by Lawcruncher View Post
                  The whole letter was a bit ridiculous.
                  I received what feels like may be the final letter before proceedings this morning:

                  For the avoidance of doubt our client has now communicated that it considers that the pet is and may cause an annoyance and does not provide consent to same. Furthermore our client considers the fouling and issues of interference with staff an issue of nuisance. Our client requires the animal to be removed. Should you respond with details of a reasonable timeframe for removal then our client will consider same. In the absence of same and as it appears this matter is contested our client will take the necessary steps to issue proceedings for a determination of the breach.
                  If you've any ideas on this they'd be much appreciated but very aware you've already gone above and beyond.

                  Comment


                    #69
                    One other thing about fouling.

                    I've always considered fouling to refer to when it's not cleaned up immediately. At that point it becomes antisocial and I think the MA / FH / LH would have total rights to complain. It's totally gross.

                    But that never happens with our dogs. Our dogs only use the space directly outside my flat, and it is cleaned up immediately (i.e. within 30 seconds) and disinfected if necessary. Would this still be classed as fouling?

                    Comment


                      #70
                      I answer my own question - according to the 1996 Fouling Of Dogs act, it is not fouling as long as you clean up after your dog, which we do.

                      https://en.wikipedia.org/wiki/Dogs_(...Land)_Act_1996

                      Comment


                        #71
                        A few questions:

                        1. Have you told the dog agency of your present dificulties and, if so, what have they said might happen to the dogs if you return them?

                        2. How many other flats do you know of which have dogs in them?

                        3. Have any other flat owners with dogs received communications similar to yours?

                        4. Have you discussed the position with any other flat owners? If so, what do they think?

                        5. What is the prospect of getting any other flat owners to write to the solicitors or sign a petition saying the landlord is being unreasonable?

                        5. How is the RTM application proceeding?

                        Comment


                          #72
                          Thanks Lawcruncher. I was hoping you'd chime in. I do have a draft response but your feedback has been invaluable so far.

                          1. Yes. There's no process to give the dogs back per se as the adoption agency have no physical premises; the dogs would either be kennelled or put with another foster family until an adoptive family is found. As kennelled dogs have around a 20% adoption rate, whereas fostered dogs have around an 80% adoption rate, I don't think I could live with the former option, and I'd prefer not to live with the second. We have asked the agency to redouble their search for an adoptive home.

                          2. Two - and I have evidence from the MA that they know about one of the dogs, but I'm not so sure about the other one.

                          3. Nothing from lawyers. The MAs have tried to tell them to get rid of the dogs via email but they've admitted to me that this is difficult after accepting service charges from them.

                          4. I've mentioned it to around 70% of the leaseholders, all of whom have been super supportive and have offered to start a petition. I think I could collect signatures for 22+ of the flats in our 24 flat block quite easily, and it wouldn't surprise me if I could get them from everyone - I've helped most people out here one way or another.

                          5. It is being challenged and we are in the process of applying to the FTT for a determination.

                          One other point to note - I notice that our lease allows the landlord to recover his legal costs from the residents where incurred in conjunction with an S146 application. This could be why they issued the communications under the auspices of this act, even though it feels very heavy handed.

                          Comment


                            #73
                            Reply coming soon. Watch his space.

                            Comment


                              #74
                              Originally posted by Lawcruncher View Post
                              Reply coming soon. Watch his space.
                              Thanks dude. This is what I drafted, no idea if it's useful. I was in a bad mood when I wrote it.

                              You'll appreciate that it is very difficult to defend oneself against accusations without evidence for or details of same; in their absence I am left with no option but to deny them. We have never allowed our dogs to foul the communal space so I simply do not know what you are talking about.

                              However, I point out that am not the only dog owner in the block, and wild foxes, cats, and even humans are known to regularly foul the communal areas - so I'm unclear why my dogs are being targeted specifically. I also make the point that the MA have been well aware of this and of the other dog, and have accepted service charge payments from the flat in question for many years. I am no legal expert but I believe this creates a precedent; certainly this was the MA's view when I discussed it with him last year. By a strange co-incidence, this dog also became the subject of mysterious complaints when his owners raised concerns about the quality of service provided by the MA.

                              I have already denied that I interfered with staff - I expressed an opinion when I was asked for it; that's not interference, it's conversation.

                              I do not think you have a leg to stand on, and I will not be bullied. I believe that if I am taken to Tribunal for a S146 determination over a pair of foster dogs who will almost certainly have been adopted by the time we reach court, the Tribunal will look on it as a waste of their time, as will I. If I am taken to Tribunal I shall seek legal advice as to whether frivolous and heavy-handed forfeiture proceedings such as these can be construed as harassment.
                              Last edited by Benzo; 07-08-2018, 09:18 AM. Reason: edited to remove identifying information

                              Comment


                                #75
                                Sorry for the delay, but here is a draft letter for consideration:

                                Thank you for your letter of…

                                Thank you for formally confirming your client’s opinion. However, as I have said in earlier correspondence, it is implicit that the opinion has to be reasonably formed. All the residents I have spoken to (and I have spoken to almost all of them) have expressed the opinion that the dogs are no bother to anyone and that your client’s stance is unreasonable. If no one has complained about the dogs and your client’s interest is not prejudiced it is difficult to see any justification for action.

                                Other flat owners have dogs and have not been sent solicitor’s letters. That suggests that your client’s motives in instructing you to write to me are motivated by considerations unrelated to good estate management.

                                I am keen to settle this matter as, apart for anything else, I am finding it all very stressful. As advised, I have tried to discuss this issue with the managing agents, but they have been reluctant to engage with me. In case you are unaware of the fact, the dogs are not actually my pets, but are being fostered until a permanent home can be found for them. The difficulty I have is that if I have to return the dogs to the agency there is a possiblity that they will have to be put down, an outcome which, as I am sure you will appreciate, I am not prepared to contemplate. I shall contact the agency asking them to give rehousing the dogs top priority, though of course the holiday period is not the ideal time. My suggestion is that we see how things progress over the next three months and then review the position.

                                Comment

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