Freeholder restricting number of key fobs to enter building - breach of covenant!?

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    Freeholder restricting number of key fobs to enter building - breach of covenant!?

    Help/recommendations/advice would be greatly appreciated!

    I have a lease on a flat in a purpose built block. Entrance to the block requires an electronic key fob. When we bought the place last summer we were given two fobs and keys. I requested a couple of additional copies from the freeholder and was denied on the basis of "security".

    This means that having decorators in is a nightmare (which I recently experienced); it means I can't give a copy to a neighbour to water my plants when away; it means I can't have a spare for when friends come to stay. I am only permitted extra copies for any adults living in the property. That is what I have been told. And I am very unhappy about this.

    I think this is a straightforward breach of the lease, since it says the following:

    “Full right and liberty for the Lessee and all persons authorised by him (in common with all other persons entitled to the like right) at all times and for all purposes in connection with the permitted user of the demised premises to go pass and repass over and along the roads ways footpaths gardens and yards in the Estate and through and along the main entrances and the passages lifts landings and staircases in the Estate leading to the demised premises”

    The freeholder is the local authority. I went through their complaint procedure and then went to the Ombudsman. They ruled it's outside their jurisdiction but indicated they recognised my request was quite reasonable.

    The leaseholder advisory service advised me to seek mediation with the freeholder. Failing that, I know I have to go to the County Court. They cautioned me not to go to court without a solicitor, but I don't have the cash to fork out for that.

    Any recommendations for next steps/anyone used mediation successfully? Or gone to the County Court for a breach of lease who failed or succeeded and can offer some advice? What are the risks associated with going to the court alone without a solicitor? If the courts find against me, I believe I wouldn't have to pay costs because it'd be the small claims track but what I'm concerned about is that it would prevent me from seeking redress in the future...

    Any thoughts would be welcomed - thanks!

    #2
    Move

    Cheers!
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      Could you agree to bear the cost of the extra key fobs? Would that be a reasonable compromise?

      Comment


        #4
        If you "lost" the fobs you have and requested replacements, what would happen?

        It may be your existing ones could be deactivated but worth considering.

        Comment


          #5
          Have you taken the matter up with a councillor? Or the local press?

          Comment


            #6
            Please note that the covenant :-

            “Full right and liberty for the Lessee and all persons authorised by him (in common with all other persons entitled to the like right) at all times and for all purposes in connection with the permitted user of the demised premises to go pass and repass over and along the roads ways footpaths gardens and yards in the Estate and through and along the main entrances and the passages lifts landings and staircases in the Estate leading to the demised premises”

            is only so your flat is not "Land locked".

            You lease the flat only, you do not lease or own the property mentioned in italics.

            To pass over the land and items belonging to the freeholder, you need the freeholders permission to Pass and Repass.
            If you did not have that permission, via above covenant, you would not be able reach your flat and would be trespassing on the freeholders property.
            Legaly, without that covernant, you would not be abl to pass over the freeholders property and your flat would be "Land locked"
            it's yours, but you cannot access it unless freeholder gives you permission.

            So the above covernant is not about keys / or fobs, as that is a different thing.

            I would just say that since you last spoke to them, you have lost a key fob, and to kindly issue a new one otherwise you will have to annoy everyone else to let you in, or call after hours for one of the Management team to let you in.

            Comment


              #7
              Could you not get a new key cut and a copy of the fob made. Some key cutters will read your fob and record it onto another.

              Comment


                #8
                A bit of a tricky one.

                The question to ask is: Is full and free access to the flat by the OP and all those with legitimate business there being prevented? I think the answer has to be that it is. Security is not a sufficient reason to restrict access.

                Comment


                  #9
                  Agree with above.
                  "and all persons authorised by him (in common with all other persons entitled to the like right) at all times and for all purposes in connection with the permitted user of the demised premises to go pass and repass "

                  Therefore, you are allowed to give your authorisation to tradesmen, nanies, childminders, cleaners to enter your flat, therefore you need extra keys, and the lease allows you to do so.

                  Comment


                    #10
                    We've had to consider this a number of times and the general advice is as follows

                    There is good case for a breach of quiet enjoyment and a restriction on the other rights over the common areas to your flat.

                    While it is reasonable to restrict access especially where ASB or subletting is an issues in a council block, a spare set, one for a key holding service/family member, & one for emergencies is not unreasonable and what most residents would expect to have. A restriction to only the number of occupants is far to restrictive.You might find a lawyer who will take it on a contingency basis for a damages claim and they may well fold, especially as there is human rights issue here.

                    Sadly with the complaints process and the contractor arguments you presented, they are weak and open to argument, and that undermines the procedure. It is very much on the ombudsman’s scope to deal with these but unless arguments are comprehensive, and that means the kitchen sink as well, at stage one they can only work with what they are given and not new arguments.

                    Otherwise in addition to what is said above try “losing your keys” down a road drain and getting a replacement fob and a spare car key as “proof”.

                    Most LA blocks have drop link access, silver plate with a round hole, and most builders have one or buy one for £16 http://www.easylocks.co.uk/fire-brig...FYXItAodDh0AzQ
                    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
                      Originally posted by leaseholdanswers View Post
                      We've had to consider this a number of times and the general advice is as follows

                      There is good case for a breach of quiet enjoyment and a restriction on the other rights over the common areas to your flat.

                      While it is reasonable to restrict access especially where ASB or subletting is an issues in a council block, a spare set, one for a key holding service/family member, & one for emergencies is not unreasonable and what most residents would expect to have. A restriction to only the number of occupants is far to restrictive.You might find a lawyer who will take it on a contingency basis for a damages claim and they may well fold, especially as there is human rights issue here.

                      Sadly with the complaints process and the contractor arguments you presented, they are weak and open to argument, and that undermines the procedure. It is very much on the ombudsman’s scope to deal with these but unless arguments are comprehensive, and that means the kitchen sink as well, at stage one they can only work with what they are given and not new arguments.
                      Thanks for the considered response - much appreciated.

                      Not sure what you mean by the complaints process and the contractor arguments being weak: My complaint to the Ombudsman covered not just the Lease covenant but also Article 8 stuff on the right to a family life - they explicitly informed me that they are both outside their jurisdiction. If you're telling me that the Ombudsman can in fact rule on these matters, that's very interesting. Is that the case?

                      On the question of finding a lawyer to take the case on a contingency basis - any suggestions for where to start to try to find one?

                      Regarding the various suggestions for other ways to get around this by, for example, "losing" some fobs, or getting them copied - I don't think they're terribly sound. I suspect it may not work since they're electronically calibrated and can presumably be de-activated (I have to pay £30 for each one, too!).

                      Someone asked whether I've contacted my councillors or the press. I've tried the councillors. They were USELESS! But later this week I'm going to meet with one of my local MP's caseworkers to try to get his help. I may also try to contact the press. I think it's properly outrageous. Leaseholder law needs reforming, badly!

                      Thanks, everyone, though, for thoughts. Apart from the idiot who responded first suggesting the solution would be to move. The rest of you have restored my faith in forums and others' kindness!

                      Comment


                        #12
                        Originally posted by JK0 View Post
                        Could you agree to bear the cost of the extra key fobs? Would that be a reasonable compromise?
                        Thanks for the suggestion but they already charge £30 for each one (although it's only £20 if you're a council tenant!).

                        Comment


                          #13
                          Yes they can rule on these matters but I can't examine it without seeing every letter and complaint and clearly that they have not ruled, points to a matter of the process and complaint failing at some point to require them to do so. Just like large companies councils and HA's devote a lot of time and money to "managing" the complaints processes...

                          happily there are practical work arounds suggested.
                          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


                            #14
                            Originally posted by meehr View Post
                            Thanks for the suggestion but they already charge £30 for each one (although it's only £20 if you're a council tenant!).
                            Then a drop key for £17.
                            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


                              #15
                              Not sure this is the sort of matter which a lawyer will take on on a contingency fee basis, but you can always ask.

                              Before thinking about instructing a lawyer on whatever basis, I recommend putting it to the council in legal terms throwing the onus on them to justify their position. Something like this:

                              Dear Sir,

                              [Address of block]

                              I refer to my lease of Flat [ ] which provides for a right of way in the following terms:

                              “Full right and liberty for the Lessee and all persons authorised by him (in common with all other persons entitled to the like right) at all times and for all purposes in connection with the permitted user of the demised premises to go pass and repass over and along the roads ways footpaths gardens and yards in the Estate and through and along the main entrances and the passages lifts landings and staircases in the Estate leading to the demised premises”

                              The following may be noted:

                              (a) the right is described as "full";

                              (b) it may be exercised by persons authorised by me;

                              (c) it may be exercised at all times and for all purposes.

                              Please explain, citing authorities to back your position, why a lockable entrance door which can only be opened with an electronic key which I cannot get copied is not an obstruction unreasonably interfering with the right as granted.

                              Yours faithfully,

                              cc Chief executive
                              Legal department
                              Your ward councillor(s)


                              Send to the housing department (or other relevant department) and copy to those cc'ed.

                              Comment

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