Who pays for costs incurred by freeholder enforcing lease terms?

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    Who pays for costs incurred by freeholder enforcing lease terms?

    Hi, I own a flat in a building comprising two flats. I an a leaseholder and the other owner is a leaseholder too. I am also the freeholder (Lessor). The owner of the flat is allowing something to happen that I believe poses a threat to the building. He does not agree. His lease states that he may not 'permit any waste spoil or destruction to or upon the demised premises nor to do or permit any act or thing which shall or may become a nuisance damage annoyance or inconvenience to the Lessor or his tenants or the tenants...'. A separate clause states that he agrees 'to pay to the Lessor all reasonable costs and expenses (including legal costs and surveyors fees value added tax thereon) properly incurred by the Lessor or which become payable by the Lessor in or in contemplation of any proceedings or service of any Notice in respect of the demised premises under Section 146 and 147 of the Law of Property Act 1925...'. Am I correct is my understanding that I can hire a surveyor and that if he states that the other owner is causing a nuisance then I can recover my costs? If I should need to go to court and if I should win, would I be able to recover my legals costs too? Thanks.

    #2
    Originally posted by jimbob127 View Post
    A separate clause states that he agrees 'to pay to the Lessor all reasonable costs and expenses (including legal costs and surveyors fees value added tax thereon) properly incurred by the Lessor or which become payable by the Lessor in or in contemplation of any proceedings or service of any Notice in respect of the demised premises under Section 146 and 147 of the Law of Property Act 1925...'. Am I correct is my understanding that I can hire a surveyor and that if he states that the other owner is causing a nuisance then I can recover my costs?
    This clause only enables you to recoup the cost involved if you can satisfy a court that the costs were incurred in pursuit of legal action pursuing forfeiture of the lease.

    If you are certain that whatever it is that the leaseholder is doing "poses a threat to the building", is in breach of the lease, and is serious enough to warrant pursuing forfeiture because no other action will lead to the leaseholder rectifying the breach, you might be able to justify trying to pass the costs on using this clause. You would probably need to make it clear to the leaseholder that you expect them to fix the breach and would intend to pursue forfeiture if they don't, and it might still be a hard sell to a judge (especially if it's not a breach that the judge considers to be particularly serious).

    You might get better advice if you explain what it is that the leaseholder is allowing to happen.

    Comment


      #3
      on the very rare occations I used a solicitor, if it was a definte breach of the lease, they stated that costs incured prior to issuing a notice of fofeiture, was payable by the leaseholder , and was covered by the covenant
      "or in contemplation of any proceedings or service of any Notice in respect of the demised premises under Section 146 and 147 of the Law of Property Act 1925."

      Just make sure you have evidence ( photos etc ) and reference initially to possible forfeiture action, my solicitor said he always won the costs for "in contemplation of any proceedings or service "

      And as above post. - You might get better advice if you explain what it is that the leaseholder is allowing to happen.

      Comment


        #4
        Thanks for both of your replies. I had posted a response but unfortunately it got labelled as spam. There has been structural damage to the building. The structural engineer has indicated that the neighbour's (other leaseholder's) tree might be a cause. I have spoken to tree experts who have indicated that the tree should be removed. There is a separate clause

        'In case at any time during this demise any dispute arise between the Lessee and any other tenant of the lessor relating to the premises to them respectively demised or the party or other walls fences passageways pathways sewers drains pipes watercourses and other easements rights or appurtenances whatsoever relating or belonging thereto or any repairs thereto or the contributions in respect of the expense of such repairs as hereinbefore provided or any nuisance or annoyance arising therefrom then in every such case such dispute (provided the other party thereto shall also have agreed or become so bound to refer the same) shall be referred to the determination and award of the Surveyor for the time being of the Lessor whose determination and award shall be final and binding on the Lessee...'

        Could I perhaps raise a dispute as a tenant and appoint a surveyor (a tree expert) as the freeholder? If yes, who would pay for the surveyor? Or is there some other way that I should be handling this?

        Thanks for your advice.

        Comment


          #5
          I'll let you know how it goes with costs, however it is best to say what the issue is and you are aware that you could lose your right for the forfeiture and the costs would not be recoverable in this case

          Comment


            #6
            I / we asume its a semi-detached house, and not one up one down.

            If it's a tree and you are the freehoder, then ANY damage to the building - is the responsibility of the freeholder to ensure tree is removed and the cost is split depeding on the lease.

            But, reading your other posts, each leaseholder is responsible to maintain their demised property which you left out of this post ( naughty - and would have saved me time reading them )

            Your building IS damaged, you have proof and a recomendation from experts what the remedy is, and if the other leasehloder refuses to rectify ( maintain as per lease - by removing the tree ) then you as freeholder can remove the tree as an urgent matter and charge all the cost to the other leasholder.

            It's YOUR building, you are the freeholder and YOU are responsible to ensure it does not get damaged by the actions, or none action of a leaseholder.
            You have have expert advice already from structural engineer and tree experts. There is no need to engage any more.

            You have to "stop the rot" and enforce the "maintain the demised premises" to prevent further damage, even if you pay then send him the bill. The building is in danger by the actions of the other leaseholder, the other leasholder must be made to comply.


            Comment


              #7
              Thanks for your response. The structural engineer has said that is a possible cause. The neighbour says that it is not a fact that the tree is the cause. The engineer has not recommended in writing that the tree be removed. I have received verbal advice that the tree should be removed but I'd need to pay to get that written down. I'd ideally prefer not to pay for this myself. Would you suggest that I get the report and then attempt to recover the cost or just pay myself? Or should I raise a dispute as a tenant and then appoint a tree expert as a surveyor? If I raise a dispute, it is unclear to me who pays for the surveyor.

              Comment


                #8
                You need something more specific saying must be removed. And as it seems that It would end up in court - best get insurance invloved

                Comment


                  #9
                  Well, if next door are refusing to find out what the problem is, and the lease says Keep the property well maintained and each half is definitely responsible for ALL repairs in their demise, then you as freeholder do not want the building damaged.

                  you instruct the other to fix the problem of damage to the building, by taking your recomendations, but as he wont, then you are o.k. to say to him. Get the 2 reports to state what the poblem is, and get the problem fixed.

                  You write and say,
                  "You -- (Him) have 30 days to obtain reports and quotes to fix the problem, so that the building stops being damaged.
                  Copies of the reports and builders quotes to be sent to you (jimbob127) as you need to ensure YOUR building wil be repaired by accredited builders, and a copy of their insurance cover be provided also to you.

                  It's your building, you are ultimately responsible for ensuring the building does not fall down, and ensuring the other observes the lease to maintain his half the property.
                  If he refuses to cure th problem, then as freeholder you can enfore the lease and get quotes, then bill him everything.

                  This must me made clear what you will do if he refuses to find and fix the problem.
                  And you do not want his cowboy mates anywhere near the property.

                  If he refuses everything, then go ahead, then bill him for eveything - with interest if he does not pay.

                  At present he is refusing to find out and fix the problem ( I assume, as he could have employed someone to investigate -- please check .)

                  But first, contact on web' https://www.lease-advice.org/
                  Your first call ( when you get through ) they will give you a registration number, ask what your brief problem is, then give you a rough time and date some one will call you back.

                  Their info is right 98% of the time, by the way, and i have had one of those 2% wronguns, but other than that, they are o.k.

                  Always check with them,

                  Let us all know the outcome.

                  Comment


                    #10
                    I recommend that you avoid legal action if at all possible, there is likely to be only one winner and it is unlikely to be you, or the leaseholder. You seem to be talking to the leaseholder, which is a good sign, I suggest that you ask him how he proposes to deal with the problem. As the lease states that disputes should be resolved by a surveyor, I suggest that an independent surveyor is appointed and you both agree to accept the decision. If you cannot agree on a surveyor, you can apply for one to be appointed by the RICS. You may also wish to contact the local council and enquire if there is any objection to the tree being removed.

                    Comment


                      #11
                      Thanks for the reply. He has pruned the tree slightly and said that he'll review it in the year. This is not a satisfactory solution. Do I need agreement on the surveyor as I am the freeholder and the lease states that the freeholder appoints the surveyor?

                      Comment


                        #12
                        It is better to agree one surveyor otherwise the leaseholder will appoint a different one and you could end up with a court case which will involve the two surveyors arguing the case at the expense of you and the leaseholder.

                        Comment


                          #13
                          But doesn't the lease say that the decision of the surveyor is binding on both of us?

                          Comment


                            #14
                            The lease contract is a legal minefield, it is much better to try to reach agreement at the outset or at least agree a way forward with the leaseholder. If there is the slightest suspicion, even if it is untrue, that the surveyor's report is not impartial or that you have contacted numerous surveyors but selected the one who happens to agree with you, the relationship with your leaseholder can be destroyed which can result in constant referrals to the courts and tribunals which will be time consuming and costly.

                            Comment

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