Appraisal of a Covenant

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    Appraisal of a Covenant

    At a recent AGM a proposal was put forward for the installation of electric gates to the car park for security reasons. Even though there is a near zero crime rate in the area.

    The development consists of 4 houses and a block of 12 flats.

    11 of the 12 flats are for the proposal with 1 flat, myself and the tenants of the other 3 houses objecting.

    The gates will only be activated by a fob which will mean no provision for continued access by pedestrians to the houses via that easement. The only alternative route, which is less direct, is by the flat who has objected due to the increase in pedestrian traffic passing his lounge and bedroom windows.

    Pedestrian access to the entrance to the block of flats will not be affected in any way.

    Those for, are confident that the following covenant allows them to proceed with a majority vote at the forthcoming EGM:

    “Maintaining the grounds of the building, including providing signs and equipment to regulate vehicular traffic and parking’’

    We, the objectors don’t see interfering with an easement as regulating traffic.


    I hope this makes sense and a knowledgeable member can advice accordingly.


    Thanks

    C J
    Last edited by Calamity Jane; 20-03-2013, 00:28 AM. Reason: spelling

    #2
    Where is your block in UK ?

    You need to check the wording in your lease as to whether the service charge account can be used to pay for this installation.

    Usually the wording in the lease will require the service charge account to pay for the maintenance of what is already on site.

    Comment


      #3
      The word is maintaining and the addition of gates is arguably an improvement, an addition, and not maintaining what was there ( and in the future replaced) when the leases were granted. The wording of the houses if they are not leasehold msut also be looked at.

      As you might be aware irrespective of the GM discussion and resolution the company is still required to consult the leaseholders under Section 20 .

      http://www.lease-advice.org/publicat...nt.asp?item=19 ( note that while the issue of the £250 limit is under review and how it applies, the mechanics of the notices still apply.

      The reason is that even if the company decides, what they provide and how the costs are recovered are controlled by the individual leases, and those are subject not to the Companies Act but the Landlord and Tenant Act 1985 as amended.

      Once they make the proposal you should apply to the LVT to determine if the costs are recoverable.

      You also have a good argument over the restriction over pedestrian access such as the delivery driver postman friends and neighbours etc, how do they contact the flat owner, and the rights that exist to pass over the common areas.

      A pedestrian gate could be added or a telephone based entry system, the entry panel dials your home phone, but that adds to the cost and again an addition.
      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


        #4
        Originally posted by Gordon999 View Post
        Where is your block in UK ?

        You need to check the wording in your lease as to whether the service charge account can be used to pay for this installation.

        Usually the wording in the lease will require the service charge account to pay for the maintenance of what is already on site.
        Thank you Gordon999.The developement is in Blackburn.

        Comment


          #5
          Originally posted by leaseholdanswers View Post
          The word is maintaining and the addition of gates is arguably an improvement, an addition, and not maintaining what was there ( and in the future replaced) when the leases were granted. The wording of the houses if they are not leasehold msut also be looked at.

          As you might be aware irrespective of the GM discussion and resolution the company is still required to consult the leaseholders under Section 20 .

          http://www.lease-advice.org/publicat...nt.asp?item=19 ( note that while the issue of the £250 limit is under review and how it applies, the mechanics of the notices still apply.

          The reason is that even if the company decides, what they provide and how the costs are recovered are controlled by the individual leases, and those are subject not to the Companies Act but the Landlord and Tenant Act 1985 as amended.

          Once they make the proposal you should apply to the LVT to determine if the costs are recoverable.

          You also have a good argument over the restriction over pedestrian access such as the delivery driver postman friends and neighbours etc, how do they contact the flat owner, and the rights that exist to pass over the common areas.

          A pedestrian gate could be added or a telephone based entry system, the entry panel dials your home phone, but that adds to the cost and again an addition.
          Thank you for your detailed reply leaseholdanswers.I now feel there could be a more positive outcome.The leases of the houses are the same as the flats.

          Thanks again.

          Comment


            #6
            Originally posted by Calamity Jane View Post
            Thank you Gordon999.The developement is in Blackburn.

            Its not as safe as you think :

            http://www.lancashiretelegraph.co.uk...t_home/?ref=ar

            I think that having gates to the entrance of a small estate seems to suggest more safety and makes it more atractive to female buyers and helps the seller to achieve a higher market price.

            Comment


              #7
              The gates have been installed following a majority vote which was to be expected due to the flats outnumbering the houses.

              An application had already been submitted by my self regarding other issues.

              At the pre-trial the chairman allowed the matter of the gates to be added to the application.

              I have now received the decision from the trial only to find that the decision favours the respondent.

              The panel has interpreted “Maintaining the grounds of the building, including providing signs and equipment to regulate vehicular traffic and parking’’ as sufficient to allow the costs of the gates to be collected as a service charge expenditure.

              I would gratefully welcome other members advice on whether its worth pursuing leave to appeal to the Lands Tribunal ?


              Thanks CJ

              Comment


                #8
                Based on the very limited information then the lease would allow for such gates.

                As ahouse the LVT ( and the "LT2) has no ability to determine contribution or interpret the cocvenats for your hosue unless it is a leasehold property.

                Even if the lease allowed for recovery and installation what seems to have been lost is the issue of the pedestrain access and how it affects that.

                That would be a contractual and rights matter.
                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


                  #9
                  Whether a gate on a right of way is an obstruction is not always an easy question to answer. It can turn on what the position was at the date of the grant. Assuming the way was ungated when the right was granted and no right was reserved to erect a gate then:

                  A. If the gate is unlockable whether it amounts to an obstruction depends on the degree to which access is affected. A gate on a footpath is unlikely to cause other than minor inconvenience so long as the width of access is not narrowed. A gate on a drive or giving access to a field may amount to an obstruction if the convenience of access is significantly reduced or a hazard created either for anyone getting out of a vehicle or other road users.

                  B. A locked gate is almost always going to be an obstruction. The only possible exception is where the right of way was granted for a specific narrow and infrequently required purpose - for example to allow deliveries of fuel. If granted in general terms, the exercise of a right of way is not restricted to the property owner, but can also be exercised by visitors. If visitors cannot use the way because entry is barred by a locked gate the way has been obstructed.

                  A right of way subsisting as an easement is part of property just as much as the land conveyed or demised. The owner of the way cannot vary or restrict it anymore than he can claim part of the land which enjoys the way. An easement can only be varied (a) where the terms of the grant allow it (and that requires careful drafting which may not bind a successor) or (b) by agreement. The clause quoted is nowhere near enough to allow a variation. A variation requires agreement by all the owners entitled to the right. There is often confusion in people's minds between lessees in their capacity as such and the lessees acting collectively through a tenants' association. Easements can no more be varied by majority decision than any other provision in a lease; the only exception is adding to or varying "regulations" designed for harmonious communal living - and even then the lease must allow it. In any event, it looks as if the clause quoted comes from a list of what can be charged for which is not at all the same thing as what the landlord/management can do. If there is no power to do something it is difficult to see how any lessee can actually be billed for it if he has not consented to it.

                  Comment


                    #10
                    Part of my argument would be based on a string of precedents concerning "maintenance" as this is very hard to stretch to providing for the first time, at a some future point after the intial scheme is finished ie at the time of grant, such new equipment and restrictions.
                    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


                      #11
                      Lawcruncher,

                      “Maintaining the grounds of the building, including providing signs and equipment to regulate vehicular traffic and parking’’ Is from the fifth schedule: services to be provided.


                      The decisions wording is “The Tribunal is satisfied that the gates fall within the scope of the above clause of schedule 5 and although there is a disadvantage to the applicants it is outweighed by the benefits provided by a secure parking provision’’.

                      Thank you Lawcruncher and leaseholdanswers your replies are very encouraging.

                      Kind regards

                      C.J

                      Comment


                        #12
                        Whatever the rights and wrongs from the maintenance point of view does not alter the fact that an easement has been interfered with. An easement is as much part of property as the lounge. If the majority voted to take over your lounge for communal purposes that would benefit the majority, but nevertheless not allowed.

                        Comment

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