Lease law: Definition of 'one family only' / 'single private dwelling'?

[DNM2012]

Being in a similar situation I sympathise, but you need a bit of a reality check. Lawcrunchers post 12 really sums the situation up.
There is almost certainly a breach there but enforcing it is costly and the outcome is by no means certain.
One thing is sure the other LH will not be getting evicted, it is the threat of forfeiture that normally gets results, but as suggested that option could have been waived.
If the management co do take legal action, you will have to cover their costs and £1000 will probably be a drop in the ocean, my solicitor charges £180 ph so 5 hours work!
Its frustrating I know, it might be worth seeing a solicitor on a free/or fixed fee initial meeting to establish what this is likely to cost and what options you have.

[Lawcruncher]

I might add that the friends, the owner and her boyfriend all moved in together, however only one lady owner is on the lease. Ive read through a few of the tribunal outcomes on the leasehold advice website and theyve said it can go both ways. I just wonder whether the fact they moved in together when she bought the place might allow the tribunal to consider them more as - 'one family'.

That is a distinct possibility. The tribunal will look at the whole picture. Whose name is on the lease is really a bit of a red herring. Even if all four were legal owners the flat still needs to be used "as a single private dwelling in the occupation of one family only".

Its my impression that it simply shouldnt have been allowed to happen in the first place. Can the managing agent be held liable for allowing a situation to occur that was actually a breach of the lease?

No.

[Lawcruncher]

Id also like to mention that the owner of the property above has already admitted to there being two unrelated couples up there. Would this therefore need to go to a tribunal to decide? Or can the managing agent simply apply for an accelerated possession order and have a judge sign off the court order? ... Is there REALLY a need to seek council on this one as it seems pretty clear cut to me?

Also, does anyone have any idea of the legal costs/time frames for eviction on this particular case?

It is not clear who you are thinking of evicting here.

The freeholder/managing agent has no standing to evict a lodger or sub-tenant because it is not entitled to occupation of the flat.

An application for possession against the leaseholder is effectively an application for forfeiture and is certainly not going to be dealt with by the accelerated procedure and is, in any event, almost certainly doomed to fail.

The position is by no means clear cut.

[Lawcruncher]

Been doing some reading around at it appears (as she has already admitted in writing to having two couples), that after the 14 days notice the managing agent can issue her with a section 146 giving her 28 before court proceedings are due? Is this correct?

Apparrently the lease states that I as the owner below have to pay the legal fees to remove her and uphold the terms of lease (which everyone thinks is ridiculous), and that that will cost over £1000 just for the solicitors opinion on this case. Anyone know a good solicitor?

I've also read that applying for an accelerated possession order is just a matter of filling out a form which can be done by anyone?

By all means get the agent to serve a section 146 notice. It does not need to be followed up.

I expect what the lease says is that you can require the landlord to take proceedings for breach of covenant against other leaseholders so long as you provide security for costs. That is a fairly standard and not unreasonable provision. How much it will cost is a how long is a piece of string question. I doubt that any preliminary advice you get from someone you pay will differ significantly from what you have been told in this thread.

The real problem here seems to be the noise. Before considering taking action you should think about contacting the Environmental Health Department of your local authority. See this page for general information: http://www.nfh.org.uk/resources/Arti..._part_five.php

[DNM2012]

Lawcruncher do you think from what has been said the other leaseholder has admitted the breach? If not my understanding is a valid S146 notice cannot be served until the breach is confirmed.

I totally agree the advice given on this forum is excellent, but I think anyone taking legal action based solely on the advice on an internet forum would be foolish.

[leaseholdanswers]

Do you know, I could have sworn I had included a disclaimer at the start of my post saying something like "I don't know much about leaseholds". LHA does, in fact I hope he won't mind me referring to him as our primary leasehold poster.

I would also just like to stress that the legislation I referred to is not directly linked to leasehold properties, I am not suggesting this is a HMO, I just offer it as an indication of how the law has defined a family in other scenarios.

Oh yes please dont be offended, the point was that as lay person, posts are read( like mobile phone contracts) as providing the answer that is sought rather than what is said. I was anxious that the person might take away an ok they can to do anything and read no further.

[leaseholdanswers]

Its my impression that it simply shouldn’t have been allowed to happen in the first place. Can the managing agent be held liable for allowing a situation to occur that was actually a breach of the lease?

To an extent in that while they could not physically prevent it, if they were made aware of the intention, and failed to deal with the application in time, or failed to advise their client ( assuming it is not within their authority to apply on behalf of their client0 an injunction to prevent it.

[leaseholdanswers]

Been doing some reading around at it appears (as she has already admitted in writing to having two couples), that after the 14 days notice the managing agent can issue her with a section 146 giving her 28 before court proceedings are due? Is this correct?

Apparrently the lease states that I as the owner below have to pay the legal fees to remove her and uphold the terms of lease (which everyone thinks is ridiculous), and that that will cost over £1000 just for the solicitors opinion on this case. Anyone know a good solicitor?

In a couple of posts the issue has been raised so as to avoid confusion, reference as to managing agent doing or taking should be read as acting as agent in that proceedings and other decisions are taken, for their client the freeholder, under the contract between them, or instructions given to them to relay or act on, that gives them the authority to commit or represent their client.

If the 14 daynotice is a leter befroe acrtion, then proceedings can be started.

Now a S146 notice is only valid if the breach has been admitted or determined, and here is where the art comes in. A court can determine the breach and then go on to consider the s146 notice and issue a possession order, which then becomes tied up with the issue of the court also considering the rights of the occupants and their security of tenure,a nd whetehr to teminate their tenancy.

In these cases the low cost option, and the one that gives the most opportunity for the flat owner to deal with the issue is to get determination at the FTT first.

With respect the cases don’t go both ways, it always turns on(error excepted) on the exact circumstances of the terms of the lease and relationship between occupants.

So
1 you need to ascertain the full facts of that
2counsels advice prior to proceedings is a good investment

[leaseholdanswers]

Being in a similar situation I sympathise, but you need a bit of a reality check. Lawcrunchers post 12 really sums the situation up.
There is almost certainly a breach there but enforcing it is costly and the outcome is by no means certain.
One thing is sure the other LH will not be getting evicted, it is the threat of forfeiture that normally gets results, but as suggested that option could have been waived.
If the management co do take legal action, you will have to cover their costs and £1000 will probably be a drop in the ocean, my solicitor charges £180 ph so 5 hours work!
Its frustrating I know, it might be worth seeing a solicitor on a free/or fixed fee initial meeting to establish what this is likely to cost and what options you have.

The probem is that they still have the underlying problem of noise nuisance. We have a property in Central/West London with very large apartments which are restricted in letting to one family and subject to prior consent, but owners still try the "sharers let" on, and the poor PM runs ragged keeping up with this. Local agents have been warned and its daily search on the internet to check the adverts and passed the LVT decision to wan them of costs.

In this case the iossue was not so much nosie and coming and going but the demand on the hot water system from six or seven adults in a flat rather than 2 and a couple of kids.

[DNM2012]

The probem is that they still have the underlying problem of noise nuisance.

Which is a whole other legal can of worms, the OP hasn't said what the noise nuisance is!

[derekunderwood01]

Hi guys,

Thanks for all your kind help. It's funny you mention the strain on the waterworks actually. We share a main pipe in the building and Thames water mistakenly send me a bill for my flat AND the above flat which was astronomical for a year. So now I am worried their extra family up there is putting extra strain on the building as a whole. Is this something that can be noted at the ftt?

As far as spiralling legal costs, as far as I'm aware it's just an application form to the courts which is around £150 and that form can be filled out by us? as far as I can see the initial costs aren't too bad, can anyone give me a hypothetical breakdown?

The facts of the matter are that she has admitted in writing to there being more than one couple up there. Do we need any more proof than this to go to court? Also - as regards nuisance, I have submitted dates and times of these nuisances to the managing agent over the last year, will this be enough to determine a breach of lease in this respct or do I need sound recordings equipment etc?

Id also like to mention at this stage that an environmental health officer at the council is also involved in proceedings... And I'm currently checking whether the above owner is in breach of being an HMO. Is there anything realistically that the council can do about this? They have offered to inspect the property to get evidence of two families/one dwelling... The sooner the better?

[derekunderwood01]

Also in terms of relationship between occupants, what more evidence do we need here? Even if the two couples were family - the fact she has admitted to there being two couples would clearly suggest two families which would be a breach.

Birth certificates/ electoral role information/who's name is on the lease?

If it goes to court is it the accused responsibility to prove theyre family/their relationship or ours?

Also - if the courts rule in my favour, can they force the leaseholder to evict the tenants or is it just damages that are awarded? How much are these 'damages'?

[DNM2012]

derekunderwood01,

What exactly is the noise nuisance? The environmental health can help with some noise issues but not all, but it will help your case if they are involved.

The property is not a HMO, but if the council is willing to inspect, then that too will help your case, if they are willing to share their findings with you.

You can't take the other lease holder to court for breach of lease, only the Freeholder can.

[derekunderwood01]

The noise nuisance is too much to mention - parties every weekend, constant running around, slamming of doors, stomping both sides of my property, shouting in the corridoor - to make matters worse I'm first floor in a Victorian conversion and my apartment is built around the central stairwell. Her lodgers go up and down stairs every Evening all night every night for hours on end - sometimes 5 times an hour, 26 times a night and 50 times a day at weekends... Closest thing to crazy I've ever been. The sad thing is if she hadn't breached the lease in the fist place none of this would happen. I've let her know multiple times in writing... Little has improved... The trouble is because she has live in friends its like a constant party up there 24/7... Student living,.. Nightmare!

[DNM2012]

I totally sympathise, I have 6 people above me stomping around at all hours, luckily no parties though.
I have the advantage(sometimes) of looking like a thug (thats the Mrs description of me) so when I confront the noise makers they tend to listen