Can RMC breach the lease in good cause?

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    Can RMC breach the lease in good cause?

    For a few years, to keep the service charge down, our RMC has externally re-decorated every 7 years instead of every 5, as stipulated by the lease. In practical terms this makes no difference, and the freeholder/landlord is unbothered (as far as anyone knows, they are passive investors). Now one leaseholder is demanding the RMC revert to the 5 year cycle, which will send the service charge through the roof, makes the flats even harder to sell at even lower prices. His solicitors have sent a letter before action. Does the RMC have any legitimate way of defending itself or will the FTT or court order it to adhere to the lease, regardless of the financial consequences?

    #2
    My defence would be that of course I intended to paint every 5 years. Just that every time, it takes many months to go through the s20 rigmarole, get quotes, and then get a start date for the painters.
    To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

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      #3
      is anyone out there

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        #4
        Fancy instructing a solicitor in a case like that!

        The starting point has to be that the awkward leaseholder is is in the right and you cannot get round that. A judge may though say that if decorating does not need doing he can see no point making an order as no one is prejudiced. So, no saying what the outcome would be. Anyway, you do not really want to be running up solicitor's bills which will soon amount to more than the extra cost.

        Write back and say that you will decorate as required by the lease. If decoration is overdue or due soon, add that the appropriate consultations will begin soon.

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          #5
          I think when you set all residents additional service costs for the foreseeable future against the RMC's solicitor's bills, it might be worth their taking a punt on getting a sensible judge. Thanks for your response though, appreciated.

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            #6
            If you lose you also pay the tenant's solicitor's costs, which could be thousands. Please bear in mind that the starting point here is that the RMC is not complying with its obligations as set out in the lease. There has to be an assumption that you will be lucky to win.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              If you lose you also pay the tenant's solicitor's costs, which could be thousands. Please bear in mind that the starting point here is that the RMC is not complying with its obligations as set out in the lease. There has to be an assumption that you will be lucky to win.
              Our RMC is required by the lease to carry out internal and external decorating at least once in every 4 years, the problem being is that the internal decorating was carried out last in 2011 and the external decorating in 2014.

              It is also obliged to providing operating maintaining and (if necessary) renewing and adding to any electronic security door or entry system in the common parts. Again the problem is the electronic security door to our block (14 flats) has not been serviceable at all times since 2013. The latest managing agent deciding that the door was working correctly and removed the required repair from the outstanding repairs.

              It is also obliged to abating any nuisance and executing any such works as may be necessary for complying with any notice served by the local authority in connection with the maintained property. Again the managing agent failed to even investigate a complaint of noise from a water pump, even though it had agreed to and the directors were aware of the problem.

              It is also obliged to keeping proper records of all costs charges and expenses incurred in carrying out the obligations imposed by the schedule and appointing a qualified accountant for the purpose of auditing the accounts in respect of the maintenance expenses and certifying their total amount for the period to which the account relates. No accounts have been issued by the managing agent since they were appointed in July 2019 and Section 21 L&TA 1985 requests have been ignored by both the directors of the RMC and the appointed managing agent.

              It is also obliged to administering the management company itself and arranging for all necessary meetings to be held and complying with all relevant statutes regulations and orders and (if the management company thinks fit) employing a suitable person or firm to deal with these matters. Again the problem is we have only had 2 AGMs in the last 11 years.

              I could continue, however, in short the RMC is failing to meet the majority of the obligations contained in the lease.

              Comment


                #8
                Why would the service charges go "through the roof"? They should be prepared based on the terms of the lease, so you should collect monies over 5 years. It looks like you never had any intention of complying with the lease which is not a good position to go to court. You could suggest amending the terms of the lease or you could start the consultation procedure and hope that sufficient leaseholders will ask you to defer the redecoration works. Don't expect any sympathy if you go to court, how would you react if leaseholders turned round and said that they did not intend to comply with the terms of the lease?

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                  #9
                  Just send a reply to solicitor and say thank you . And state the 5 year cycle in lease was drafted by the developer's solicitor who knows little about maintenance work for redecorating of the building.

                  it requires the leaseholder to propose a 5 year cycle for external redecoration with seconder for the proposal and we will hold a meeting of leaseholders to discuss the proposal..

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                    #10
                    Originally posted by Gordon999 View Post
                    Just send a reply to solicitor and say thank you . And state the 5 year cycle in lease was drafted by the developer's solicitor who knows little about maintenance work for redecorating of the building.
                    That won't wash. You cannot look behind the lease and make such an assumption. The point is that every five years (which cannot be characterised as unreasonable) was what was agreed when the leases were signed.

                    Originally posted by Gordon999 View Post
                    it requires the leaseholder to propose a 5 year cycle for external redecoration with seconder for the proposal and we will hold a meeting of leaseholders to discuss the proposal..
                    That won't work either. Each lease, apart from being a grant of land; is a separate contract between landlord and tenant. Any tenant can enforce the landlord's covenants. If 99 out of a 100 tenants agree to waive a covenant the dissenting tenant can still enforce it.

                    If a lease says the building is to be decorated every 5th year the tenants cannot complain if that is what the landlord does. Arguments that it is not necessary cannot be sustained because every five years was what was agreed. (A possible exception is if the premises had to be decorated in, say, the fourth year because of some damage.) The same argument applies if it is a tenant who wants to enforce the obligation.

                    It is difficult to see how a judge could fail to enforce a clear covenant except in exceptional circumstances - see previous paragraph. He might though decline to award other than nominal damages if he finds that the claimant has not suffered a loss.

                    Comment


                      #11
                      Originally posted by Gordon999 View Post
                      Just send a reply to solicitor and say thank you . And state the 5 year cycle in lease was drafted by the developer's solicitor who knows little about maintenance work for redecorating of the building.

                      it requires the leaseholder to propose a 5 year cycle for external redecoration with seconder for the proposal and we will hold a meeting of leaseholders to discuss the proposal..
                      Am I missing something here or are you suggesting that the original poster just makes something up in the hope that the solicitor will not have read the lease and just accept what the original poster says?

                      I'm a bit sensitive to that because the managing agents try that with me when I query the actions of our freeholder. They talk about, "the directors agreed this", "my other colleague dealt with this, "we are allowed to do this", "we had other priorities", etc.

                      Because I'm not a complete idiot, I just reply, sticking to the legal points and then after a few months too-ing and fro-ing, they agree with me. But it's a waste of everyone's time getting to that stage. That's not me being arrogant, it's me reading the lease and reading the accounts they produce.

                      Comment


                        #12
                        Originally posted by Gordon999 View Post
                        Just send a reply to solicitor and say thank you . And state the 5 year cycle in lease was drafted by the developer's solicitor who knows little about maintenance work for redecorating of the building.

                        it requires the leaseholder to propose a 5 year cycle for external redecoration with seconder for the proposal and we will hold a meeting of leaseholders to discuss the proposal..
                        Agreed, it's an RMC so completely different scenario to freeholder/lessee argument as win or lose the leaseholder will be paying at least part of the legal costs.
                        I've never heard anything so ludicrous in 35 years of property management and would guess it's a made up post from someone trying to get out of paying for decorating.
                        Paints are much better than they used to be.

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                          #13
                          I'm not convinced that it will cost more over the years if decorations are done every 5 years. It depends on what is being decorated. For example, a first search online says, (external ) "Wood surfaces need to be painted every 3 to 7 years."

                          I know of a block where because the last decorations were done 11 years ago, the decorations will now cost 4 times the cost of doing it every 5 years. This is partially because of inflation but mainly because if done every 5 years, it involves, rubbing down the fascias and cills with some sugar soap and then applying a top coat.

                          It now involves, stripping the wood back to bare wood, applying a primer/undercoat and then the top coats.

                          And the end look won't be as if was regularly maintained.

                          Comment


                            #14
                            Originally posted by Sydaton View Post
                            . it's me reading the lease and reading the accounts ,,,.
                            Well done, I wish more leaseholders would read the lease and the accounts. I think that you are spot on, the RMC will never be able to prove that it is saving monies or acting in the best interests of the leaseholders, let alone the freeholder, whom it has not even approached.

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