Hi Ho off to the FTT we go!

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    Hi Ho off to the FTT we go!

    Hi all

    Good news I think.

    Well I have my solicitors views on my LH lease breaches. The breach being using the upstairs flat as a HMO, this in their opinion being a breach of the single family use, restriction on subletting part and nuisance clause within the lease.

    My solicitors opinion is-

    1) The breach is likely an ongoing breach as it is continuing.
    2) The breach has not been waived by the previous FH's inaction.
    3) The right to forfeiture has not been waived as above.

    The one fly in the ointment is the question of estoppel, if the LH can prove long time use in breach of the lease then the breach may not be enforceable. I am not overly concerned about this but it is obviously is a risk.

    My solicitors advice is to send a further letter before action advising the LH I am applying to the FTT to determine the breach, then if the FTT do determine in my favour to issue a notice before forfeiture giving 14 days to resolve.

    Once we start this process, hopefully the LH will give some indication of how they intend to defend this action, and I will be able to make a clearer judgement on the way forward, unfortunately as the LH refuses to respond to any communication I send it will be difficult.

    In terms of costs, they are recoverable under the lease, but apparently the LH can ask the FTT to restrict these, so I know this could cost a fair bit.

    I am thinking of handling the FTT determination myself, I know many of you on here have done so, so your opinion and advice is most welcome.

    Thanks in advance.

    #2
    Originally posted by DNM2012 View Post

    I am thinking of handling the FTT determination myself, I know many of you on here have done so, so your opinion and advice is most welcome.

    Thanks in advance.
    Proof & Evidence are the key to these types of cases.

    Subletting is a one off breach (if the lease prohibits it). Prohibited use is ongoing. Nuisance depends on the exact wording of the lease and what has gone on.

    The previous FH's inaction would potentially waive the right to forfeiture and also possibly prevent you from relying on the subletting covenant (estoppel).

    The FTT are unlikely to consider whether you have waived the right to rely on re-entry but they will probably take into account estoppel.

    So if the previous LL has ignored subletting you could be in a position where you need to prove misuse and nuisance. This can be more difficult than it sounds. What evidence do you have?
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

    Comment


      #3
      Originally posted by siva View Post
      What evidence do you have?
      Thanks for replying

      1) Diary going back to when we moved in noting all incidents, tenants moving in/out, nuisance caused etc.
      2) CCTV/Photo evidence of tenants entering leaving.
      3) Copies of adverts on loot/from local shop windows advertising room.
      4) Three councils inspections by housing department, struggled to get in writing but have email correspondence.
      5) Smoke alarm, emergency lighting and fire doors installed to meet councils requirements.
      6) Written evidence from former FH confirming occupancy, but that LH was going to remedy situation, they never did.
      7) It may be possible to get statements from neighbours and local estate agents (who were marketing property at one point), but cannot count on this.

      Hows that sound?

      Comment


        #4
        Well it all depends on what their defence is and the actual details and severity of things and of course who you get as a panel. I've seen decisions that vary significantly. On the whole it's very hard to get the FTT to determine that there has been a breach. Proof that the leaseholder was aware and did nothing about nuisance is quite often important.

        If you can get independent witnesses to attend then that helps enormously. In terms of nuisance, proof of Council or Police action/involvement always helps.

        >6) Written evidence from former FH confirming occupancy, but that LH was going to remedy situation, they never did.

        That may hinder rather than help.

        Edit: I would also add that even solicitors misinterpret subletting covenants.
        I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

        Comment


          #5
          Originally posted by siva View Post
          Well it all depends on what their defence is and the actual details and severity of things
          Quite.

          Solicitors advice is to proceed, review once we get LH defence. Possibly withdraw from FTT if necessary and re assess before costs mount.

          Comment


            #6
            Bear in mind that costs of up to £500 can be awarded for unreasonable behaviour. If you are thinking of potentially pulling out you are best protecting yourself by offering mediation and going ahead with it if the other side agrees. If they suddenly surprise you with a strong defence you are entitled to discontinue on the basis that they refused to ague their case beforehand. You might even be able to ask for costs and fees if they refuse mediation and then surprise you with a strong defence.
            I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

            Comment


              #7
              So far the other LH has refused to enter into any negotiation. Returning my letters unopened etc.

              Comment


                #8
                Costs are no longer limited or capped, make sure you have the current rules to hand
                http://www.justice.gov.uk/downloads/...i-1169-l8-.pdf
                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
                  Thanks LHA, Thats a hefty document. I'll do my best to read and understand it.

                  The crux of the matter is I have no idea what defence the other LH is likely to pull out of the hat, if any.
                  Short of saying 'its my flat I can do what I want', they seem to be burying their head in the sand.
                  I have asked my solicitor to send a LBA in the hope it prompts some response, I won't hold my breath.

                  Comment


                    #10
                    You have to wait and see what their response is and they cannot simply assert estoppal but have to prove it. Lets see what their response is and you can resolve that at PTR and seek leave for further exchanges if need be. The trick is to prepare as much as you can and insist that there is ample opportunity to submit claims and evidence beforehand and resit last minute submissions.

                    As to the LBA I take the view that this should set out the skeleton of the argument and leave little or nothing out. That way it is a sound basis to mediate a solution and easy then to add detail for the full claim, and as above, make it clear that all the issues were aired right that the outset.

                    Even if waiver and estoppal are a concern they can still address ancillary issues that arise such as nuisance.
                    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
                      Well the deadline in the LBA has expired.

                      There has been no response from the leaseholder(as I expected), so I have instructed my solicitor to apply to the FTT to determine the breach.

                      Comment


                        #12
                        Good luck !
                        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


                          #13
                          Thanks, Will update as things progress.

                          Comment


                            #14
                            Well I've got my hearing date set for the end of April. Sooner than I expected.

                            The hearing is set to last 2 hours and only one tribunal member is listed as hearing the case. Is that normal? I thought 3 members heard cases?

                            The other leaseholder has 3 weeks to prepare their defence and submit it to the tribunal.

                            Comment


                              #15
                              Well I'm just back from my hearing.
                              I got a determination on the day.
                              The tribunal found the LH to be in breach of all 3 covenants we went for.
                              Including nuisance which I knew would be the tricky one to prove.

                              Cold beers all round

                              Comment

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