The nightmare of laminate flooring above

[jenniferL]

Hi

The terms of the lease and covenant, for my share of freehold flat state

‘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’

I have an ongoing issue with noise from the flat above who have put down laminate in at least the hallway and kitchen.

The managing agents and the board of directors are not taking action to enforce this even after my attempts to resolve it directly and raising it with the managing agent and the board. This has now been ongoing for a number of years ( but also documented in emails).

Do the managing agents and the board not have a legal obligation to uphold the covenant ?

Many thanks for any guidance .

[leaseholdanswers]

The Devils Floorboards again

Hi

The terms of the lease and covenant, for my share of freehold flat state.

The what? You have a lease and it is those terms alone.

You may indeed have a share in or be a member of a company who own THE freehold.

No such thing as Sof

Yes the company does, but the agents merely act on their instructions.

If the leases state that the freeholder must act on a complaint from a leaseholder ( or contain a covenant that all leases are on the same "t &cs") then you can ask them to act on it and then if they do not issue proceedings.

While the hallway is one thing the kitchen is another as you would have to argue that the laminate is unsuitable in terms of nuisance or noise.

On the latter basis you might also think about a private prosecution of the issue is sufficient to be a statutory nuisance under the EPA 1990 as amended , in the magistrates court. I doubt that it is.

Do read this though as some of the issues may arise where the company might have agreed to it or their remedies are limited if they have known about if for some time. http://www.telegraph.co.uk/news/ukne...den-floor.html

[jenniferL]

Thank you for the comments, and I perhaps didn't use the right terminology, regarding a share of the freehold and perhaps have confused things.

Am I right in understanding that the board of directors does not have to act on a complaint where there is a breach in the terms of the lease and they are being asked to support having the terms of the lease upheld, unless there is a specific clause stating that they must act on complaints ?

Many thanks and thanks for taking the time to send the link to the article.

[leaseholdanswers]

Thank you for the comments, and I perhaps didn't use the right terminology, regarding a share of the freehold and perhaps have confused things.

Am I right in understanding that the board of directors does not have to act on a complaint where there is a breach in the terms of the lease and they are being asked to support having the terms of the lease upheld, unless there is a specific clause stating that they must act on complaints ?

Many thanks and thanks for taking the time to send the link to the article.

Using SoF does confuse things in general as it leads people to think that they have something, and rights, to and from something that does not exist.

Am I right in understanding that the board of directors does not have to act on a complaint where there is a breach in the terms of the lease

Thats the wrong context. If there is a breach of the lease-

1 A leaseholder has civil remedies against the offending leaseholder

2 The company, the freeholder, is only required to act where they have a contractual-the contract being the lease or Articles- or statutory obligation, and therefore the ability, to do so.

In short they don't have to act on a compliant that they are not obligated to act on. That you think that they should is wishful thinking. Common sense and logic is rarely of great use in this scenario, it has its own;" leasehold logic".

That's why leases have the sorts of clauses I referred to above in order to resolve these issues for everyone's' benefit. As always what then does your lease say?

[jenniferL]

Hi
I have read the lease cover to cover, but I'm not totally sure what I'm looking for, but it looks to me like there are a couple of clauses that suggest they should act.

I have now been advised that they do not want to take action as if they acknowledge the breaks in the terms of the lease, then they can not collect any maintenance and ground rent until the breach is rectified. They are concerned that it could be up to half of the properties, there being 41 in total, and they can not afford to put themselves in that kind of position.

Thanks again for your advise

[leaseholdanswers]

Can you post the wording please?

Well they need only do one, and then issue an LBA for all of them.

In your case you are not interested in 41, only the flat causing you a problem and will in most cases idemnify them for their costs anyway.

if anything it helps them to act.

[jenniferL]

Sorry I'm not sure which wording exactly to include. Could you perhaps guide me in terms of if there is a particular section in the lease that is likely to be the right bit. Sorry to be vague but it doesn't make a whole lot of sense to me.

Sorry, too clarify they have already accepted ground rent and maintenance from the property above me, since they knew about the breach. I was told by doing this and accepting payment that the breach is then considered to be sanctioned and the right waived to act ?

Your right my primary problem is above. Can they choose to only act against certain properties ? Because I know two of the directors have installed wood.

Thanks

[jenniferL]

I think this may be what you were asking about.

THE Landlord (but not to bind itself after he shall have parted with the reversion expectant on this Lease or to incur further liability thereafter) HEREBY COVENANTS WITH THE tenant as follows:
(2) That every lease or tenancy agreement of a flat or studio retail workshop in the building hereafter granted by the landlord shall contain regulations to be observed by the tenant thereof in similar terms as those contained in the Fourth Schedule here to and also covenants of a similar nature to those contained in Clause 4 and 6 of this Lease save that in the case of a lease of a studio retail workshop such regulations or covenants may contain such modifications as may be appropriate to the use thereof.
(4) At the request of the tenant and subject to payment by the tenant of ( and provision beforehand of security for) the costs of the Landlord on a complete indememnity basis take all reasonable steps to enforce any covenants entered into with the landlord by a tenant of any flat or studio retail workshop in the building of a similar nature to those contained or referred to in Clauses 4 and 6 of this LEASE.

There is a clause 4 under tenants hereby covenants with the landlord
(4) Observe and perform the regulations in the fourth schedule hereto PROVIDED that the right is reserved to the landlord to supplement modify or waive such regulations or any of them as the Landlord shall in its absolute discretion determine having regard to the principles of good estate management.

Sorry that this is long winded and I hope I have managed to capture the information that you asked about.

Many thanks as always

[leaseholdanswers]

“Indememnity”

Liked that. Lawyer by day, rap artiste by night.

You are spot on, the clause requires the landlord to act, but I would add a rider that they must actively seek costs under the lease and in tribunal or Court as well, and not rely simply on your indemnity.

The first stage is for you to gather written recorded and comparable evidence of the issues by diary recording and even a cheap ebay type noise meter.

[jenniferL]

Sorry, too clarify they have already accepted ground rent and maintenance from the property above me, since they knew about the breach. I was told by doing this and accepting payment that the breach is then considered to be sanctioned and the right waived to act ?

I aim to amuse , I'm surprised I only made one mistake lol

Thanks for the clarity, and I have some records in writing going back a couple of years already. Please could you just clarify the situation on the above though ?

I understand that board are not keen to actively enforce this part of the lease (and possibly other parts) because once aware, they would need to stop collecting money (ground rent and maintenance) until the breach is rectified, but also that if they do collect money after the breach has been raised that the right to enforce the lease on the breach is forfeited ?

Many thanks again

[leaseholdanswers]

"the right to enforce the lease on the breach is forfeited"

Perhaps you mean " the right to enforce the lease, on the breach, by forfeiture, is lost" However it is very arguable that this is a continuous breach under the wording of your lease, and the right to forfeit is not waived. That said it does not prevent them from enforcing the lease by other means such as injunction if forfeiture is lost.

[jenniferL]

Sorry if I sound silly, but I'm not clear bout what you are saying ?

Thanks again

[leaseholdanswers]

The landlord is obliged to enforce the terms of the lease.

he can do that by

1 Sending in Ron and Ron and their very hungry, angry dogs to " 'ave a quiet word in their shelllike"

2 By a court order to carpet

3 Through forfeiture proceedings

The right to forfeit can be waived by the demanding and accepting of rent and service charge after knowledge of the breach, but it is very arguable that since that only applies to once and for all breaches, failing to carpet and installing hard floors is on ongoing breach, as is the nuisance that comes from it, and not subject to waiver.

[jenniferL]

The landlord is obliged to enforce the terms of the .

Sadly I don't have a Ron & Ron on hand.

Last couple of questions.....promise

1) what if the landlord won't take legal action after they have written to the tenant giving a deadline and it's not complied with ?
2) can the landlord agree that it is ok just to put a rug down ?
3) what are my next steps legally if either of the above prove to be the case ? Do I have a case against the landlord or the tenant ?

Many thanks as always.

[DNM2012]

Hi

You have my total sympathy as I have been in a similar situation with laminate flooring and a FH that wouldn't act.

If the FH won't act you can take them to court for breach of contract.

If the FH does act you will have to pay all their costs. Which they may then recover from the offending LH or not.

You are stuck between a rock and a hard place unfortunately.

Things you need to consider are-

1) This could cost thousands.
2) You have a dispute, which you will have to declare if you sell your flat in the future, as will the upstairs flat if you have formally complained.

I take it you have approached the upstairs flat and told them of the problem? You could consider mediation, as a way of reaching a compromise.