Defective garage lease

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    Defective garage lease

    Six years ago I took my freeholders to court because they had let several of the 18 garages here fall into serious disrepair and two had been demolished. The basic problem was that, whereas the flats were demised from the plaster in, the garages walls and all party walls drains pipes cables and wires were demised to the tenants.

    There was no mention of the roofs but there was a Lessor’s clause ”to maintain in good and substantial repair and condition the common parts of the Mansions” for which we had to pay service charges. I had taken this to mean the roofs. The freeholders didn’t, they said that the roofs were the responsibility of the Lessees.

    That’s the background to it. They might have won if we hadn’t noticed another of the Lessor’s clauses which said that they would “pending the grant of any such lease perform and observe such covenants as if it were the tenant of any such garage”. This they clearly had not done so they wanted to settle. We had a Tomlin Order which gave me concessions to my two garages (side letters) to offset my costs and ‘updated service charge provisions’. I, in my innocence, thought I would get the new leases within a month or so. That was four and a half years ago!

    What I would like your opinion on at the moment is this – because there would be a conflict between their reading of the existing leases and my new leases they wanted to only have the ‘updated service charge provisions’ when all the other leases had been varied. The new leases would have this clause

    “In this Clause “Long Lease” means a lease granted for a period of 25 years or more
    (b) The Lessor shall take all reasonable steps to ensure that any future Long Lease of the other garages on the Property or the variation of any existing or future Long Lease shall contain service charge provisions and other terms substantially similar to the obligations set out herein.
    (c) From and including the date upon which there is no Long Lease of any garage within the Mansions that contain obligations substantially dissimilar from the service charge obligations set out herein, the Lease shall be read and construed as varied by the provisions set out in the Fifth Schedule.

    It has only just dawned on me that it is unlikely that all the other leases will be varied so there will never be a time when all the leases have been varied so my Tomlin Order with its ‘updated service charge provisions’ will be circumvented.

    And what does ‘all reasonable steps’ mean. Suppose a lessee will not agree. The landlord says “he undertook to amend any new leases as with me and any mortgagee they would recognise that the existing arrangements is not satisfactory so its to their benefit to accept the changes”.

    But no mortgagor has questioned the garage lease in the past and with one of the garages on the same lease as the flat at a peppercorn rent, why would they bother?

    What would you advise?

    #2
    cant answer this one, as you need profesional advice, because there is a conflict, a possible expensive advice / conclusion.
    i hope others can be more helpfull, and i reply to you to bring up your question to the top of the list again tomorrow.

    Comment


      #3
      Have you considered organising collective purchase of the freehold title ?

      Comment


        #4
        what a headache. What are the garages roofed in? Asbestos concrete roofing sheets? I would plot a course that doesnt involve more litigation because in any event its likely to be years till your case will be heard. The outcome of your last litigation was hardly worth the effort. If the garages are roofed in something solid can you not just paint on acrypol?

        Comment


          #5
          You should apply to the F.T.T. to recomend the meaning of the lease, once and for all. If you ask for a paper decision, it would cost you nothing.

          Main points would be
          1) ”to maintain in good and substantial repair and condition the common parts of the Mansions”
          Garages are not common parts if only one leaseholder can use that Garage, and "Demised" garages are not common parts

          2) “pending the grant of any such lease perform and observe such covenants as if it were the tenant of any such garage”
          I read this as, If the tenant does not maintain the garage, the Lessor will have it maintained / rebuilt. then charge the leaseholder of that demised garage, as a service charge to the leaseholder of that demised garage

          In the same way most leases include covenants that if the interior of a flat is not maintained , the freeholder can enter your flat and carry out repairs / maintenence to ensure the freeholders flat maintains its value and is a safe and comfortable residence with no probems that may affect the rest of the building./ fabric of the building such as windows leaking, dripping pipes etc.

          Remember, the freeholder / Lessor owns all the flats, and Leases them out to the then leaseholders.
          A lease is a long term rental in excess of 21 years, which means you rent the flat for the term of the lease -- it could equate to £ 14 rent per month on a 900 year lease, if you paid £ 150,000 to take over of the lease ( you buy the lease, not the flat )

          I seems the freeholder is in breach of “pending the grant of any such lease perform and observe such covenants as if it were the tenant of any such garage” And should rebuild / maintain garages and charge the leaseholder.

          BUT, you need a tribunal decision as to the definition of above covenant, then you can act accordingly if in your favour.

          This shows exactly why leaseholders cannot be trusted to maintain their own property, and a lease has to be very clear, and if not clear, or the lease is "defective" the F.T.T. can issue a "Determination" which you can then act upon.

          The above is for you to determin your future actions, as we all have not read your lease from begining to end, nor are party to the vast amount of info from your previous court case, so one can only suggest a possible alternative that may enhance your success in resolving this matter.

          Good Luck.




          Comment


            #6
            The roofs are boarded and covered in felt. The garages were brick built in 1962. When I moved here ten years ago there were 18 flats and 18 garages. Ten had lessees but eight didn't. The 8 unleased garages were falling into disrepair. The pictures show the state of one of them. As it was next to mine and making it damp I asked the freeholder to repair it but he refused saying that he couldn't as he would be unable to make the other two leaseholders in the block pay for their garages. If I had understood the lease at the time, I could have made him but I didn't.

            Since then three have been demolished and four more will be demolished. Three leaseholders have surrendered their garages at the same time as they extended their flat leases so there are now only seven garage leaseholders.

            The litigation costs were not totally wasted as I got concessions in the settlement (Tomlin Order) but have not got them yet. I was also to get 'updated service charge provisions' in my new leases and that is where there the main holdups have been.

            We took the freeholders back to court to enforce the Tomlin Order two years ago and I thought that would be that but the judge said that we would have to go to another court to make them give me my leases or compensation. I think my solicitor should have told me this would happen.

            Their second solicitor has just left their firm of solicitors and now I am waiting to see what the third one will come up with.

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