25 Year Rule on breach of covenants

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    25 Year Rule on breach of covenants

    Have any other members here had problems getting structural repairs carried out because of an inaccurate lease plan, lack of block insurance, and an un-cooperative head leaseholder?

    In the 1970s a building was converted into four flats. I purchased one of the ground floor flats in 2005, which is an underlease. When I recently noticed that the rear addition, the bedroom, was subsiding and separating from the original Victorian extension, I notified the lessor, who owns the other ground floor flat and the head lease to the entire site. However, the lessor then stated that the bedroom was not included in the plans or lease, so in her view it did not exist legally. I obtained the plan contained in my original lease from the conveyancing solicitor and this indeed appeared to be the case. I first carried out a search at the local authority to find out how this problem had occurred.

    It appears that the conversion was carried out without planning consent. The first regularisation application in 1977 was refused, but the second application was approved in 1978. At that time the bedroom was proposed to be located in the 1st floor loft room, but this was tiny, had no stairs (only a loft hatch), a very low ceiling and was clearly not fit for purpose. In 1979 the first lessee was granted planning permission to demolish a single brick walled rear addition and to construct new footings, walls and roof for a new bedroom. This was duly built, but the plans in the lease were not amended accordingly. The internal layout of the bathroom, kitchen and living room were also changed substantially. The lessor has never carried out an annual inspection during my eight years of ownership, and she has not previously raised any objection with regard to the variation from the plans. I have let the property since 2008, but I have only been able to obtain landlord's liability insurance since the dispute began.

    The Land Registry advised me that a Deed of variation, to be agreed between the lessor and lessee could be registered. The lessor had refused to discuss this idea, as she does not want to be jointly responsible for structural repairs, along with the other two flat owners. I have pointed out that the original lessor must have been aware of the building of the bedroom on the site of the older addition, as this is on the lessor's land, and the lessor and lessee lived next door to each other.

    My question is whether I can argue the logical intention of the conversion was to include an adequate bedroom in each flat, and that the new bedroom was built due to the fact that the 1st floor bedroom was clearly inadequate. There was to my mind an implied intention to vary the lease, but there was no application to the Land Registry. An advisor at LEASE thought that an application to the First Tier Tribunal would not solve this problem, and that I would probably have to go to the county court.

    Are there any legal precedents where a such a development has been granted a Deed of Variation by the court, where the lessor has refused to agree to mediation?

    #2
    On the face of it the lessor looks justified in refusing to take responsibility and to enter into a deed of variation. I do not think that a landlord's responsibility can be extended to include part of a building not included in the original demise unless he expressly takes it on. However, there may be something in the lease which helps, though I have to doubt it.

    What you should do is write to the solicitor who acted, explain the situation and ask him to explain why he was not negligent in failing to discover that part of the property had no title. Whether he was in fact negligent is going to depend on whether the existence of the extension came to his attention.

    Did you have a survey done?

    Comment


      #3
      Hello Lawcruncher and thanks for taking a look at this problem.

      There are a few clauses in the lease which I hope might help.
      The lease plan shows that there was an earlier extension on the site, which was removed to build the new bedroom in 1979. The lease requires the lessor 1. Not at any time to do suffer or permit anything in or upon the retained premises which will lessen or diminish the subjacent or lateral support or protection thereby given to the demised premises. and 2. not to carry out any alterations to the retained premises without all necessary consents or permissions by any competent authority.
      In a sense the lessor appears to have permitted the alterations to the original rear addition, which also diminished the support and protection to this part of the demised premises. In effect the original addition was destroyed and the new construction was probably built by agreement, waiving the aforesaid prohibitions. Perhaps I could argue that the lessee acted as agent for the lessor? I was told by the current lessor that the original lessor and lessee carried out the development together. Here is a warning against carrying out a development purely on trust.

      There was a survey, which noted that there was a degree of movement in the extension, but which had settled. There has been further movement since then though, hence my concern to repair. Conveyancing was in 2005, so I guess I am out of time under the 6 year rule.

      Would it be correct to conclude that at the very least the bedroom is not part of the retained premises, and I am solely responsible for the new bedroom? Indeed, could I have a claim for adverse possession? The lessor might object to a claim of adverse possession and admit that the bedroom was built on licence. Could such a licence constitute a Deed of variation? I assume that the lessor cannot knock my bedroom down now, or force me to surrender my lease, due to the six year rule. After all, the lessor has a right to enter one each year to assess the state of the demised premises and has apparently never done so on record.
      I'd appreciate your further assessment of my situation.
      Thanks

      Comment


        #4
        We had a similar situation in our conversion. A loft conversion had been done before the current leaseholder bought the flat. It was demised to the flat. However the conversion had not been done correctly and we discovered major structural issues. The walls were falling outwards.

        The leaseholder had to pay for all remedial works. The freehold company did not pay for anything.

        You are in a similar situation and my thoughts are you will have to do and pay for all remedial works. Agree with freeholder that if you do this, they will grant a deed of variation with new lease plan.

        Comment


          #5
          I think the covenants that you ascribe to the lessor are in fact the lessees. It seems that the first structure was removed and the new one erected. What leads you to conclude that the lesser was aware of or consented to that?

          Even if the old structure was part of the demise, its replacement does not automatically become the landlord’s responsibility. In fact he could, on your post so far, require that you remove and reinstate the old structure or repair and regularise the new, unless you can prove that he has by an act or omission accepted the new.
          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


            #6
            Thanks for your suggestion.
            However, I still have a valid claim for repairs to the main part of the property, and for nuisance parking and driving on my footpath. I might have to trade off to actually get the repairs done, with a reduced charge against her property for the favour. If not, I still hope to establish precedent here, and I will post the result when it is done. One possible option is to claim that whilst the bedroom may not be on the lease, I still have a right of repair as the lessor owns the surrounding grounds, and is responsible for the rainwater runoff which has been undermining the foundations, also in her land, which were the foundations of the previous extension.

            Comment


              #7
              Thanks again. The lessor and lessee have similar covenants as to repairs to the retained premises, the lessor pays three fourths and the lessee one fourth. The lessee is responsible for the demised premises. Therefore, the old structure was never part of the demise. The current lessor has lived in her property since 1989, and has never carried out an annual inspection of the retained premises, i.e. the structure and foundations and roof etc of my flat. I am not sure which time limitation could be in force here, 6 years, 12 years, or 20 years, but surely it would be too late now for the lessor to object to changes which were made in 1979, ten years before she purchased the head lease? I have checked again and it is the lessor's duty not to do or permit anything which would diminish support to the demised premises. I could argue perhaps that removing the old structure (which may have been collapsing in 1979) and replacing it with a new structure in the same area didn't diminish but improved the support.
              Last edited by BoruB; 21-11-2013, 13:13 PM. Reason: Additional point

              Comment


                #8
                I suggest you buy a copy of the freehold title and see the footprint of the building. That is what the lessor bought. If the old extension is not on there, then you are going to have difficulty getting the freeholder to accept it as their responsibility. It is also then an illegal extension.

                It may be the foundations are too shallow or it wasn't tied to the main building properly. Unfortunately because neither you nor your solicitor spotted the problem with the lease plan, it is your problem and I would be wary of putting charges against the freeholder or you could find yourself with a demolition order or having to pay a large sum of money to have it demised to your property as well as fix it.

                Comment


                  #9
                  Thanks again bbva, these are very useful reference points to explore.
                  Firstly, the old extension is on my certified lease plan registered at the Land Registry. This is with my lease and must also be with the lessor's documents, because the freehold plan of the site (which I obtained from the LR) also includes the old extension, so this must have been approved by the freeholder.
                  The freeholder would probably also have been consulted about the 1979 planning application. I will certainly now check with their land agent about this. When I asked the agent about changes made to the access in 1988 I was told that they would have approved such changes as they were of benefit to the leaseholders, and it would be too late now for them to object to such historic changes anyway. I wonder if the freeholder would be willing to state that they approved the planning consent in 1979, or should I leave this to a solicitor? The lessor might already have been in touch with the agent about this issue and they might now be reluctant to take sides.
                  However, can I argue that by both Act and Omission the lessor accepted the new structure?
                  In 1989 if her solicitor carried out the proper searches, which he or she probably did, this would have revealed that the bedroom structure had been given planning permission in 1979. The lessor is bound ‘to keep the structure of the retained premises in repair…to ensure the maintenance and support to the demised premises. The planning consent and building of the bedroom, and demolition of the old structure was surely a material change’ which the current lessor must have accepted, either by act or omission in 1989? The original lessor was surely at fault in the first place for allowing the old structure to be demolished, without drawing up a deed of variation to protect both parties? If this was not the case surely it would be my right to require the lessor to rebuild the old structure, and put the outside toilet back etc? Such a potentially ludicrous situation gives the matter perspective. The lessor could not afford to do this and I would not want her to do so. She would surely be better off admitting to the act or omission when she purchased the head lease in 1989?
                  My underlease also provides for annual inspection by the lessor of the demised premises. The lessor admitted to me that she never undertook any such inspections, and no objections were ever made to the improvements. Surely this was a very significant act of omission?
                  The only logical conclusion I can draw is that the original lessor and lessee agreed to the changes, and informally waived the relevant provisions in their respective leases. This is not a case of an improvement or structural change being secretly carried out by a tenant where the landlord was absent, such as a loft conversion that might remain undiscovered. The parties in 1977-79 lived next door to each other, and were closely involved in the development together. The rebuilding took place in full view of everyone involved.

                  Comment


                    #10
                    Just two points of clarification.
                    1. The lessor is not the freeholder. The freeholder is a land company which granted leases in the 19th century and is now just a holding company, remote from the situation. They have some remaining oversight with regard to traditional architectural fixtures, and possibly extending long leases after 999 years. Not sure what else.
                    2. The new bedroom was tied into the original Victorian extension, which was the kitchen, pantry/storeroom and outside wc to the house when it was a single dwelling. The addition was added, with the consent of the freeholder, some time in the 1960s, and the concrete floor is still there. This is what is subsiding. The bedroom walls are built over the footprint of the old extension.

                    Comment


                      #11
                      The problem could stem from the fact of adding an additional storey without adequate foundations could be the root of the problem. This is not your lessor problem as it was done before either one of you were involved.

                      You will first need to establish the exact cause of the subsidence and what remedies are going to be needed to fix it. You will also need to hire a solicitor to get the demise sorted out. However without the lessor granting the Deed you are not going to be able to claim that they should fix it.

                      I would focus our attention on getting the problem fixed - if you offer to pay for repairs now, you could ask the lessor to grant you a Deed of Variation without charging you for the demise. I would want to keep on cordial terms with the lessor as you need them much more and they dont have to grant you anything. If you insist on chasing them for the repairs it will cost you a lot in solicitors fees, time and court cases.

                      Comment


                        #12
                        Thanks to the two experienced members who have commented on the issues I have raised here I have concentrated on research into the strict covenant issues.
                        It now appears that whoever drew up the lease in 1977 got the terms demised premises and retained premises mixed up in various clauses, first asserting that the latter owned the entire structure, then attributing responsibility for the structure to the demised premises. I am going to take specialist legal advice on whether these confused and conflicting covenants are enforceable at all.
                        Thanks for your input guys

                        Comment


                          #13
                          The fact that the parts demised and the parts for which the tenant is responsible do not coincide does not necessarily mean that the provisions of the lease conflict with each other. Ownership is a tricky concept in law, especially land law. When a lease is granted the landlord does not stop "owning" what he demises. Both landlord and tenant "own" the property, but their rights of ownership involve different things. In summary, what the tenant owns is the right to occupy and what the landlord owns is the right to be paid rent and to get the property back when the tenancy ends. Who repairs what is quite separate. It is by no means uncommon for a landlord to be responsible for repairing certain parts of what he demises. For a tenant to be made responsible for something outside his demise is perfectly possible, though unusual.

                          The complication here seems to be not so much what the leases says, but the history which leaves doubt as to who is responsible for what.

                          I agree you need to get someone to look carefully at the lease and consider the history so that they can advise fully.

                          As to two points you raised above:

                          Except in circumstances not relevant to this thread, a tenant cannot be in adverse possession against his landlord. However, if he extends the area he occupies in circumstances which would amount to adverse possession, there comes a point where he is entitled to continue in occupation until his lease expires. To what extent the terms of the lease apply to the extended area I would not like to say.

                          In the case where a conveyancer is negligent, I think it has to be the case that the six year period of limitation does not run until the negligence is discovered. When you pay a conveyancer you rely on his expertise and are entitled to assume that he has done his job properly. The negligence may not be discovered until something crops up which reveals it. On balance the conveyancer is probably not negligent, but the question is worth asking of whomever you consult.

                          Comment


                            #14
                            As lawcruncher suggests the head lessor grants an under lease, they still own the property but have granted a lease over it for a term of x years. If I understand your post, you are referring to a demise which is say a flat and internal plaster, but adding to that direct liability for other areas, in this case repair the structure i.e. external walls, or in some cases windows or doors or pathways, which is entirely acceptable, and commonly found.

                            I agree entirely on the liability issue the 6 year clock runs when the issue is discovered and therefore the question is should this have been identified at the time? The same applies for the surveyor carrying out the inspection.This is a defect in the conveyancing procedure as the surveyor is reporting on certain issues and the solicitor on others and therefore the paper and physical understanding of what you are buying can from time to time, not meet and miss areas which affect your ownership and the value. When I did mortgage valuations etc, I would always include a quick sketch or layout plan, and approximate boundary measurements, so that the lender and buyers solicitor could verify the extent of the property relative to the lease plan or description.

                            Even in 2005 crude CAD drawings were often available online, but often checking the extent of the demise again the lease and what is on the ground falls between the three.
                            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
                              A deed of variation can regularise its existence and the HL need not be liable for it, you can.

                              If you assume repairs yes their may be a claim for nuisance under the Rylands and Donoghue v Stevenson principles for the rain water run off. However if the extension interfered with what were previously adequate arrangements then the case is less than clear.

                              As to the lessor consenting to the extensions it is a matter of when they became aware of this. As a breach of the lease e.g opening a door way between or altering structure or removing a window, waiver might apply, but as it seems to also be annexing land not on the property ( the demise under the lease of the flat) it is matter of trespass and adverse possession.

                              A review of who knew what who said what must be had to sort the bones of the mutli level dispute, bearing in mind that the current structure was erected some 10 years prior to their ownership and therefore they are likely unaware of this until you raised the issue.

                              Even if planning and building regs can be obtained, that doesn’t confer ownership or liability. It is by no means certain that they did receive notice under the then 74 Act, nor does obtaining planning consent require ownership of an area.

                              As to rectification of the original demise the lessor would be daft to insist on this or seek damages, however as neither of you own the area, only you have vested interest is
                              A repairing it
                              B getting a deed of variation to include it in your lease for you to maintain

                              And sort out whatever issue you have over footpaths and drives.

                              It is unlikely that those originally involved are either around or willing to come forward and support your assertions e.g the HL might even not lived there and rented out the flat…... Even if they consented to the alteration that does not mean that anyone other than the flat owner and builder was going to be responsible for it.
                              As to secnarios maybe they sais " can I knock down the loo and make a bedroom? yes sure". And that was it.

                              Pragmatically counsel would charge you 3 to 4 k at least to sort this out and then litigation could easily top £10k with no real prospect of success.

                              I’d bet next weeks 11am donuts that the D of V and some repairs will be less than that.
                              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

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