Landlord's Breach Of Covenant

[andydd]

Hi.

Just back from the allocation hearing regarding my claim for damages for breach of covenant, didnt go too well and I was more or less informed that my claim for damages was very weak and I was warned of the perils of proceedings, (as it would be on the fast track, thus making me liable for possible costs).

The claim is regarding a common area of a driveway which has gone un-repaired/maintained since 1995 (becoming very overgrwon and I have done work pruning/weeding myself).

So, whilst I mull over what to do next I shall seek some advice.

Firstly I realise my claim for £6000 put me over the small claim limit of £5000, but there would appear to be a limit of only £1000 when claims are relating to disrepair, its not clear whether this would apply to me or not.

Is anyone aware of any other options open to me ?

The judge made reference to the LVT but I can't see how it is relevant, they can clearly rule on breaches of covenant by the tenant but can they by the landlord ?

Ultimately I want the landlord to complete his obligation to maintain the driveway but how do i achieve this ?, from what I've read gaining a specific performance ruling can be just as problematic and expensive.

I'm aware that I could use the breach as a counterclaim against any possible action by the landlord but they still doesnt get the work done.

I'm also aware that there are Statute Laws regarding common areas, the landlord has himself admitted he would be responsible should someone trip and injure themselves.

Just to add there was a S20 Consultation process in 2008 relating to this area but it was suddenly aborted with no reason given (although I suspect it was due to my correspondence with the landlord when it dawned on him the lease didnt have a provision to recover such costs).

Andy

[jeffrey]

Does this question arise from another thread? If so, please repost it there.

[andydd]

Does this question arise from another thread? If so, please repost it there.

Nope. The situation is...

Have owned leasehold flat since 1995.

Flat has driveway running up the side of the house, it is common area in possession of the freeholder.

He has not maintained it at all and it is overgrown.

In 2005, works were undertaken on the building and driveway, as an observation I said I would do some of the weeding work on the driveway so thge contractor did not do that bit.

In 2008, another S20 Consultation sent this time concentrating soley on the driveway and garages at the rear, I sent a few questions to the freeholders surveyor and then it suddenly stopped, no work was done and no explanation given.

* I strongly suspect the above stopped because the freeholder realised he would be unable to recover the costs (the garages are demised to me and the driveway is the freeholders obligation to repair, the lease has no mechanism to recover either via service charge).

So I want to force the freeholder to carry out his obligations within the lease to maintain the driveway, I started a claim in the county court for £6000 which consists of damages for distress and my costs I have incurred (£10 per week x 6 years).

Whilst I am confident in my actual case (and have a good response prepared to the freeholders defence) the judge strongly implied my actual Particulars Of Claim is flawed and warned of the costs i could incurr if I lost (esp. as this would be on fast track).

I feel my actual POC and the amounts I am claiming is muddled and ideally would like some pointers as to what the POC should contain (the actual premise is quite simple, the freeholder has not maintained the driveway thus breaching a covenant and I would like compensation).

Andy

[Mark Hessel]

Even without seeing the pleadings it is still possible to guess why the Judge has warned you. Your claim for damages and the heads of loss will get you nowhere, you are likely facing, at best, an award of a nominal sum; that results in Pyrrhic victory that is then snatched away by then having to pay the costs of your opponent.

If anything your simple summary of what you claim is closer to what you should have said, albeit you do need to refer to specific clauses etc as justification to the claim.

Andy, I fear you have wandered into the realm where as litigant in person your perception of what the law does, as opposed to what it will do, has diverged. Any time a Judge starts giving you these kind of indications then you should heed them for the most part. Whilst Judges get things wrong, assume they don't at least 90% of the time.

[leaseholdanswers]

Your proceedings should be to compel the landlord to meet their obligations under the lease, damages, in many cases, is simply icing on the cake ( except if say the roof had fallen in).

As I think hinted earlier, if the road is unsafe, and the overgrowth a home to vermin, the local authority can require them to repair it. Be warned however that the standard that they may require may fall short of waht you expect.

With overgrown areas perhaps a hired strimmer, suitable weed killer, and a couple of days effort is far cheaper than the share of cost in service charge, and gym membership for the exercise!

I am sorry your long awaited day turned into a bit of a squib.

[andydd]

Thanks for the advice, perhaps you are correct that rushing in claiming monetary amounts is the worng course to take but I am at kind of a loss really as to how I should proceed ?

Specific Performance has been mentioned and is something I shall look into.

The area is only a short driveway so I dont think the LA could act on it, it is safe to drive on, although overgrown areas of weeds could be a problem and the risk of someone tripping and suing was even bought up by the freeholders surveyor.

I have been doing the works myself (as suggested by leaseholdanswers) which I dont mind but really why should I be spending time and money when it is the freeholders obligation, I am in effect saving him money. The situation maybe different if the costs could be recovered via the service charge but the lease is flawed in this respect as it appears to have no mechanism to recover said driveway costs (I strongly suspected the reason why works on the driveway were suddenly aborted in 2008 is becuase the freeholder realised this).

Andy

[andydd]

Hi folks. An update to this, after much to-ing and fro-ing and various court vists, the defendant freeholder has now offered to settle for a reasonable sum.

I suspect this was because my case became stronger as time went on, I wasnt just relying upon the breach of covenant of the lease, there was a common implied law (that requires accessways that lead directly to flats to be kept clear), also The Occupiers Liabilty Act and The Defective Premises Act had a bearing on my case.

So it would appear to be settled for the time being, although there is still no agreement going forward as regards the area in question and future maintenance.

Andy

[leaseholdanswers]

Keep it up Andy pretty soon he will turn up with the deeds and the keys and shout " Have the "blessed" thing. !"

But with your lease, I would toss them back...

[ram]

the freeholder realised he would be unable to recover the costs

A freeholder can be anyone, including a 90 year old disabled grandmother,
who had the freehold 40 years ago.
Yes, the lease should have been made so that all maintenence is recoverable
in the lease, but you say it is not.

The only money available is the money via the service charge.
This money does not belong to the freeholder.

if the lease allowed recovery of your claim, then every one in the property
would be paying extra, via the future service charge demands, and possibly
you could have situation where "here is the service charge bill, due in
advance and includes the drive rectification ( Now, not previous years ),
pay in 28 days", so why don't you all pay for the required work to be done,
as you would have to pay anyway via the increased service charges ! if
the lease allowed the monies to be recovered.
You are going to a lot of trouble to make the landlord / freeholder meet their
obligations, - and to meet their obligations, they require money from you
( via service charges, ) to pay for every thing.

R.a.M.

[sgclacy]

In the long term is you course of action likely to cause problems on sale when you have to disclose the dispute and therefore a fundamental problem with the property.

Would it not be better to support an application to have the leases altered so the freeholder is able to recover the costs of the driveway through the service charges of those flats that have use of the garages

[andydd]

In the long term is you course of action likely to cause problems on sale when you have to disclose the dispute and therefore a fundamental problem with the property.

Would it not be better to support an application to have the leases altered so the freeholder is able to recover the costs of the driveway through the service charges of those flats that have use of the garages

EErr..Not really...Why would I want to increase my service charge ? Buying the freehold/RTM/RTE is a more likely next step.

Andy

[andydd]

A freeholder can be anyone, including a 90 year old disabled grandmother,
who had the freehold 40 years ago.
Yes, the lease should have been made so that all maintenence is recoverable
in the lease, but you say it is not.

The only money available is the money via the service charge.
This money does not belong to the freeholder.

if the lease allowed recovery of your claim, then every one in the property
would be paying extra, via the future service charge demands, and possibly
you could have situation where "here is the service charge bill, due in
advance and includes the drive rectification ( Now, not previous years ),
pay in 28 days", so why don't you all pay for the required work to be done,
as you would have to pay anyway via the increased service charges ! if
the lease allowed the monies to be recovered.
You are going to a lot of trouble to make the landlord / freeholder meet their
obligations, - and to meet their obligations, they require money from you
( via service charges, ) to pay for every thing.

R.a.M.

Having met him in court, he is certainly not a 90 year grandmother, he is director of a freeholder company that rakes in a lot of money and is certainly no stranger to LVT's and complaints.

The lease has no advance payment clause, I agree the situation isnt perfect but why should I suffer because the lease has no clause to recover certain costs, the freeholders obligations are clearly set out, he chose to ignore them purely because he was unable to recoup the costs..some might say..tough..he should of read the lease before aquiring the freehold.

I am more than happy to reach an agreement and even perform the neccassary works (as I have been doing) but it reached a stage where it all became too much.

Andy

[leaseholdanswers]

EErr..Not really...Why would I want to increase my service charge ? Buying the freehold/RTM/RTE is a more likely next step.

Andy

No I agree that yo shouldn't. But whatever route control or ownership of the property take you are lumbered with your defective lease, and any of the others in the building that maybe or are in a similar state.

You may need to sell for reasons of your control and the value, and the disputes will drag the value down. I would urge anyone to take stock of their circumstances and think of the long term. In this case think about an extension and lease variation(s) to coincide with say RTM

[andydd]

No I agree that yo shouldn't. But whatever route control or ownership of the property take you are lumbered with your defective lease, and any of the others in the building that maybe or are in a similar state.

You may need to sell for reasons of your control and the value, and the disputes will drag the value down. I would urge anyone to take stock of their circumstances and think of the long term. In this case think about an extension and lease variation(s) to coincide with say RTM

Aha..you read my mind..and with your other post too..although still 190 or so years on lease so no extension needed just yet.

In an ideal world it would be great if there were no freeholder/leaseholder disputes to declare but even without this case there would be still be disputes and they are certainly on the rise generally.

I note that the London Assembly is about to launch an investigation into them according to LAS > http://www.london.gov.uk/sites/defau...ng%20paper.pdf

Andy

[leaseholdanswers]

Utterly gratuitous waste of money. I am almost tempted to spend £2000 and take out an injunction against them.

Utter waste of time and resources.

Mend some freaking potholes or something useful.