Which has more sway the lease or the article of associaton

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    Which has more sway the lease or the article of associaton

    Just getting ready for the meeting tomorrow. One question I would like to ask so that I am prepared.

    In the AofA it does say that a resolution can be passed but does a vote for something which is not on the lease actually.

    What is more important the lease or the AofA. Is the lease the most important of the two or can a resolution outweigh what it says in the lease.


    #2
    The Lease. A company is treated as a person in law. That person is contracted to obey the lease. Any leaseholder, whether or not a member of the company, could successfully sue the company if they suffer as the result of a breach of the lease by the company.

    Similarly, the company is person that has to obey landlord and tenant law.

    It is a common misunderstanding that owning a share of the freehold absolves you from complying with the lease.

    Note the legal position would be no different from a breach of any other contract that was authorised by a general meeting, except that the other party wouldn't be the same natural person wearing a different hat.

    Comment


      #3
      Actually, strictly speaking, they have the same same sway, as they are both contracts.

      Comment


        #4
        Whilst it is legally binding to follow them it does not give authority to alter the lease which is another legally binding contract. The lease is by deed. Does that have any effect ?

        Comment


          #5
          Originally posted by scot22 View Post
          The lease is by deed. Does that have any effect ?
          No, a deed is just a specific type of contract.
          It doesn't make it more or less important.


          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #6
            Originally posted by leaseholder64 View Post
            The Lease. ... It is a common misunderstanding that owning a share of the freehold absolves you from complying with the lease.
            Spot on as ever. Leaseholders are still leaseholders. Always. If they hold the freehold they could vote to extend their leases and even by sheer folly remove the ground rent for members of the company, but they cannot tear up all the provisions because a lease is a mutual benefit contract, and if you read the Deed it should say this clearly ... Lessee of this lease hereby covenants until death or thereafter to obey for the mutual protection of the Lessor and the other Lessees of said Gaff to obey all the covenants in this lease...blah blah.

            Otherwise they might vote to spend the service charge on a cruise.
            Do not read my offerings, based purely on my research or experience as a lessee, as legal advice. If you need legal advice please see a solicitor.

            Comment


              #7
              Well that is all very helpful gentlemen. Yes we did agree to extend the lease but that was agreed with the proviso that we changed the lease so that it was readable and workable. At the moment despite size everyone pays a one six share of the drains, roof, shared areas such as garden. However when it comes to the outside decoration Leaseholders are expected to paint the outside of their flat themselves which is a bit awkward. Not for me as mine is a garden flat but for others who need scaffolding. However I Have agreed to have the decorations done altogether but they expect me to pay a one sixth even when the LVD said my share was a one eighth. However we are not moving forward on this so unless I agree the work is not gong to get done and I have water coming into my flat through the render. Penetrative damp.

              The other thing is that my share to put in a sinking fund cannot be one six. However I will pay it as long as it isnt too high, but I have a feeling the MA is going to ask for a whole lot more. However there is no sinking or reserve fund in the lease and that was one of the things I wanted changing as well as the lease to be more clear about the decorations.

              So thank you for all your help. Much appreciated.

              Comment

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