Right to Enforce Lease Covenants

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    #16
    Originally posted by mattdee View Post
    I've been finding more and more that people don't want carpets for hygiene reasons and sound proofing hard floors means that they are no longer a nuisance. It is a shame that the LVT can't take these factors into account when coming to a decision.
    The issue here, however, is what the poster could do with the notice they got from their FH; they also want to sell and have to deal quickly with the disclosure of the dispute and possibly with any noise complaints. Covering with carpets would answer quickly the problem, but can be costly.Since carpets will be new they can look an attractive solution and they can be incorporated in the price of the flat I think. It also came to my mind that certain buyers may be looking for flat that has a sound absorbent floor, if for instance they have a family member practicing an instrument or have children.
    "I'll be back."

    Comment


      #17
      Originally posted by mattdee View Post
      To quote para 22
      The Tribunal considered whether the carpeting was substantial in both size and/or in respect of substance.
      and I said

      Originally posted by leaseholdanswers View Post
      with carpet which would be interpreted as not only in area but in terms of quality of carpet and underlay.
      So I think we are of the same mind.....
      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

      Comment


        #18
        Originally posted by mattdee View Post
        I wonder if alan66 is still watching?

        It is an annoying backward clause as the lease wasn't written to take into account what is likely to change over the 99 year lease. I've been finding more and more that people don't want carpets for hygiene reasons and sound proofing hard floors means that they are no longer a nuisance. It is a shame that the LVT can't take these factors into account when coming to a decision.
        Sadly that is no entirely correct. While a suitable underlay does absorb impact noise ( and certainly better than the cheap foam back carpets) it does not absorb nearly as much airborne noise and re directs it around the structure.

        You also have to take into consideration that these clauses are often in older structures where the materials and construction are poor in relative terms in noise insulation.

        The subject of the LVT case would be a victorian/edwardian home converted into flats, and one of those cases.

        " They just ain't built for it"
        Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

        Comment


          #19
          Originally posted by mattdee View Post
          I wonder if alan66 is still watching?

          It is an annoying backward clause as the lease wasn't written to take into account what is likely to change over the 99 year lease. I've been finding more and more that people don't want carpets for hygiene reasons and sound proofing hard floors means that they are no longer a nuisance. It is a shame that the LVT can't take these factors into account when coming to a decision.
          Sadly that is no entirely correct. While a suitable underlay does absorb impact noise ( and certainly better than the cheap foam back carpets) it does not absorb nearly as much airborne noise and re directs it around the structure.

          You also have to take into consideration that these clauses are often in older structures where the materials and construction are poor in relative terms in noise insulation.

          The subject of the LVT case would be a victorian/edwardian home converted into flats, and one of those cases.

          " They just ain't built for it"
          Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

          Comment


            #20
            Your probably right, I guess it is a lesson learnt to check what you can do in terms of decorating the a property on lease.

            It is not something I would have checked for when I bought my flat.

            Comment


              #21
              Sadly a lot of buyers are more interested in the IKEA catalog than what it means to buy a flat.

              While for some flats it's wooden floors or an open plan theme for a Victorian conversions or turning two flats into a maisonette of nearly 5,000 sqft, the rules are there to protect the others who suffer through the process and consequences.

              A new buyers refurb may be their dream of heaven but it often puts the others through hell or purgatory.

              I will never forget the look of the face of the chap ( the owners project manager) who walked into my firm at 5.05pm of Maundy Thursday wanting to get a letter of consent for starting works on Tuesday at 8am for a complete strip out of a 3000 sq ft flat. That it was contravening a number of issues including a site hut in the rear light well! was irrelevant to him.

              He got a no, a hell no,and a get out when asking for a meeting on Good Friday morning, and then was served with an injunction on Wednesday lunchtime as he went ahead.
              Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

              Comment


                #22
                Originally posted by leaseholdanswers View Post
                To quote para 22

                and I said



                So I think we are of the same mind.....
                Thanks leaseholdanswers, good to know. I have a noise problem from the floor above that has laminated floor now.
                "I'll be back."

                Comment


                  #23
                  Thanks for all the responses. It seems that whilst the issue is not perhaps 100% clear we certainly have an obligation to put down rugs if nothing else. If we are expanding money on rugs we might as well get carpets!

                  To add another query, as mentioned above the freehold is not owned by an investment company but rather the owners of the flats (including me). As I understand it directors of a company have an obligation to act fairly and reasonably with regard to the interests of all the shareholders of the company and not with prejudice. It seems extremely unfair that when the owners of the flat below me did not complain about the noise for 7 years after the floor has been installed they can now cause all these problems - presumably as legally 12 years knowledge is require this counts for nothing? To live with something for 7 years suggests that there is not really a problem with it surely?

                  Secondly one of the directors (albeit the owner of a ground floor flat) has tiled floor in the majority of his flat (ie not just the kitchen and bathroom). Whilst there is currently no noise complaints in respect of his flat surely if the covenants are being enforced against me they need to be enforced against all owners regardless of the noise issue as the leases for all the flats are the same in respect of the floor covering covenant?

                  The reality is that the owners of the flat below me are frequent "whingers" and it appears they have jumped on this technical breach even though they have said that they have not really had a problem with noise from the flat and even commented in an informal discussion that they did not think the noise they did hear (toddler noise) was likely to be reduced with carpet. It appears they back in 2009 when the issue first arose had a problem with the flat being rented out due to concerns about the tenants and now the flat may be sold are concerned tap dancers/a herd of elephants may move in.

                  Thanks again for your assistance.

                  Comment


                    #24
                    Originally posted by alan66 View Post
                    To add another query, as mentioned above the freehold is not owned by an investment company but rather the owners of the flats (including me). As I understand it directors of a company have an obligation to act fairly and reasonably with regard to the interests of all the shareholders of the company and not with prejudice. It seems extremely unfair that when the owners of the flat below me did not complain about the noise for 7 years after the floor has been installed they can now cause all these problems - presumably as legally 12 years knowledge is require this counts for nothing? To live with something for 7 years suggests that there is not really a problem with it surely?
                    It does not make a difference.
                    Your lease must contain a clause (number 2 in mine) saying "The Lessee hereby Covenants with the Lessor and... that the Lessee will at all times hereafter observe the restrictions set forth in the ... " which means all restrictions will apply at all times.

                    The breach of carpets can be remedied.
                    "I'll be back."

                    Comment


                      #25
                      Originally posted by alan66 View Post
                      Thanks for all the responses. .........

                      Thanks again for your assistance.
                      This has been pretty much covered. They can enforce the breach long after the event. Even if you can claim waiver they can still act on the basis of nuisance.

                      Look at it another way,the person below is an ardent whinger, but has not raised the issue until now.

                      Noise from visiting agents has made it urgent to address a valid concern that the new owners may not be nearly as considerate and well behaved as you.

                      Bear in mind that when it is your home there is no escaping noise, you can't "go home" from it like a job, and it takes an inordinate time to resolve it.

                      I'll be honest and say that your view on the obligations of the company is self serving to your argument, which is understandable, but misconceived. The duties of the directors are the best interests of the company which is there to look after the building, and that is why they can be in conflict with shareholders who hold a personal or short term view.

                      That is why under the lease the GFF might be in breach but might the FH take the commercial decision not to expend monies where the likelihood of nuisance is tiny in comparison to a flat with another below it. They should assess whether ordinary activities create noise that could be otherwise ameliorated by carpets( to the standard on the lease) by noise level readings.

                      That would be a prudent action rather than saying one rule for all.
                      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                      Comment


                        #26
                        Originally posted by alan66 View Post
                        To live with something for 7 years suggests that there is not really a problem with it surely?
                        Carpeting would avoid the FH applying to the LVT: The LVT (I understand) establishes facts on the balance of probabilities not on the burden of proof and probably on what is the obvious at an inspection.

                        Because written complaints are recorded and disclosed during a sale, owners wish to avoid them if they can.
                        "I'll be back."

                        Comment


                          #27
                          Originally posted by leaseholdanswers View Post
                          This has been pretty much covered.
                          Leasehold answers - Witty comment in a thread about substantial carpeting!
                          I'm new to this forum and by no means an expert, but it seems to me a rug is a form of carpeting, as is a runner.

                          Comment


                            #28
                            Originally posted by designer View Post
                            Leasehold answers - Witty comment in a thread about substantial carpeting!
                            I'm new to this forum and by no means an expert, but it seems to me a rug is a form of carpeting, as is a runner.
                            I do try- I discarded the thought of the arguments being exhausted and threadbare...
                            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                            Comment


                              #29
                              As a lay person I am hoping that any knowledgeable experts with all things covered can help me. I have a situation which I hope you can clarify for me under this topic, I can’t see it covered elsewhere but if it has been then I would be grateful for a pointer in that direction.

                              I am the ground floor flat in a 3 story block. The 2 flats above mine are both floored in part with non sound -attenuating timber flooring (from which there are noise problems arising) whereas the lease covenants include:

                              Fourth Schedule. Regulations, 15. At all times to cover and keep covered with carpet and underlay the floors of the Demised Premises other than those of the kitchen and bathrooms and at all times suitably and properly to cover and keep covered the floors of the kitchen and bathrooms in the Demised Premises.

                              Elsewhere at Clause 4 The Tenant HEREBY COVENANTS with the Lessors…….. (5) Observe and perform the regulations in the Fourth Schedule hereto. PROVIDED that the Lessors reserve the right to modify or waive such regulations in their absolute discretion.
                              Does this mean I can’t have a remedy for breach since the FH can issue a waiver to anyone who wants to have another type of floor covering - or for that matter who wants to vary anything covered in the fourth schedule? If so, then when I bought the flat should I have been given a copy of any waivers in force at the time? If I knew there were waivers in force and that sound insulation was compromised I may not have gone ahead with the purchase. If a tenant removes a carpet without a waiver what can I do then?

                              Thank you

                              Comment


                                #30
                                An apology

                                I realise in hindsight that I am guilty of inadvertently “highjacking” this thread for which I apologise to alan66 and all concerned. There doesn’t appear to be a means of removing my post so all I can do is withdraw and apologise for my mistake. In my defence I can only offer that I am a “newbie” (joined 10 days ago) and am unfamiliar with the format, etiquette and rules of the forum. I dropped in to threads I found relevant to my query without realising that I should properly start my own thread.

                                Johnny49

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