Breach of Covenants

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    #16
    These issues are pretty esoteric for the average high street solicitor. Some while ago while waiting to be called I discussed this with counsel who scratched their head, and felt that you have to look at the lease and the Act "in either hand" to get an answer.

    They agreed with me that the drafting of the Act had houses and other premises in mind so that a landlord would have to expressly exclude an area, but that flats present an interesting twist as in context with all units demised to a method of interior only that it including such areas would be contradictory.

    She did add that there might be a string in the tail as where you assert that the cellar or loft is yours they might suddenly find that their service charge has doubled!
    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.

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      #17
      Originally posted by leaseholdanswers View Post
      ...counsel who scratched their head, and felt that you have to look at the lease and the Act "in either hand" to get an answer.
      Sort of. I would put it like this: Section 62 LPA 1925 was drafted with two things in mind: to save words and to provide a fall back position where the instrument fails to make adequate provision. If the instrument has all the words needed and provides for everything that needs to be provided for the section is not needed. Accordingly, the first port of call has to be the lease. If the lease answers the question posed there is no need to bring in the section. If it does not, then the section kicks in.

      Originally posted by leaseholdanswers View Post
      They agreed with me that the drafting of the Act had houses and other premises in mind so that a landlord would have to expressly exclude an area, but that flats present an interesting twist as in context with all units demised to a method of interior only that it including such areas would be contradictory.
      Not quite sure I follow that. Much has to depend on the layout. Purpose built flats are likely to present different questions and the questions posed by conversions may depend on how many flats there are to each floor. I think it has to be the case that where a tenant has exclusive access to an area that there is a rebuttable presumption that it is included.

      Originally posted by leaseholdanswers View Post
      She did add that there might be a string in the tail as where you assert that the cellar or loft is yours they might suddenly find that their service charge has doubled!
      I think you are going to have to expand on that.

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        #18
        Quick update: The vendor’s solicitors have provided us and the freeholder a letter to confirm there has been no breach but we still haven’t heard back from the freeholder. We’re now willing to pay extra for the cellar if that’s what the freeholder wants but they’re not willing to talk to us directly and the vendor’s solicitors are not willing to have this discussion with them either. Vendor is now suggesting he’s happy to pay for indemnity insurance and believes it will cover me in case there is a dispute as he doesn't believe the freeholder will come back any time soon with letter confirming the matter has been resolved. On the other hand, my solicitors have instructed me not to exchange till we hear back from the vendor or the managing agent to confirm the situation about the breach has been resolved. I’m still awaiting a copy of the leasehold to see the exact wording.

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