25 Year Rule on breach of covenants

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    #31
    Thanks again Lawcruncher. I have been re-reading my lease with these very valid points in mind.
    My starting point is that the old extension was replaced with the new one, and that this was a renewal, with better foundations, as required by planning and building regs. Rainwater runoff from the retained premises may be the cause of the damage to the foundations, and this was beyond the lessee's control.
    Also, various clauses allow for 'erections or additions' eg To pay.....rates, taxes, duties........(etc)...or any erections theron or additions thereto'. Also to paint 'the outside wood and ironwork.....of the demised premises and all additions thereto....and keep the interior of the demised premises and all new additions which may at any time be erected on or made to the demised premises..' I guess this means with the landlord's approval, but under the 20 year rule it is assumed such approval has been given.
    Another clause states that the lessor shall pay 'three fourths parts of the expense or maintaining repairing or renewing....(C) The footings and foundations main walls main timbers and roof of the building'. There is no clause which excepts any additions or erections to the demised premises from this joint responsibility. Any additions which are not objected to within 20 years surely become part of the building? If the lessor had objected before 1999, I presume that she could have insisted that the original layout was restored. If she had done this then at least the future buyers, including myself would not have bought into such a mess. The lessor has focused entirely upon the limits of her own accommodation, and has given no thought whatsoever to her duties to the other three occupiers, her sub-tenants.
    The walls and foundations and roof of the original extension were undoubtedly part of 'the main walls and foundations..' of the demised premises. The first lessor was consulted about the planning application, which effectively renewed the original extension as allowed for in my lease, and he had every opportunity to inspect and approve or stop the ongoing building works, as it was on the retained premises. However, the sloping nature of the ground on the flanking paths to each side and the lessor's decision to dig a pond right next to the foundations were not within the lessee's control. The lessor has 100% responsibility for maintaining and repairing the foundations, main walls etc. subject to the lessee paying one fourth of the cost of maintenance and repairs. And here is a crucial point which I hadn't really thought about before. When I purchased the property in 2005 the survey noted that there had been some movement but that this had settled. The mortgage was approved, but I could not insure for underpinning, for obvious reasons. I took on the renovation, having carried out underpinning before, and successfully. However, the lessor refused to permit me to carry out the underpinning, and she forebade me to go onto my own flat roof to carry out emergency repairs. In late 2008 I ignored her protests in the case of roof repairs, as my lease allows me to carry out such repairs and bill the lessor for 75% of the cost. However, I could hardly start digging trenches for underpinning under her nose, given her attitude, without a court order to protect me. It was only when I began exploring my legal options that I discovered the three fourths - one fourth split of the costs. The lessor can also claim half of repair costs from the other two flat owners. By not informing them of the position and the risk, and the lack of buildings insurance, she may have lost that option.
    The point is that the separation from the building was noticible in 2005, so the lessor should have started to think about maintenance and repairs, or at least given me the option to do the work myself, before it got much worse. Each year the problem has been getting worse, so I hold the lessor responsible for failing to agree to the underpinning, which will now probably cost much more. If the lessor had a valid argument that the extension was some not part of the building and was the lessee's full respsonsibility, she should have explained why the lease should be interpreted to this effect, or if it was vague on the point, why it should be amended by agreement. This then would be a matter of negotiation several years ago. Instead she chose confrontation and denial, and some quite nasty behaviour behind the scenes.
    Each side in a dispute must behave responsibly and I have been patient, diplomatic and non-aggressive in my responses. I have employed a solicitor and barrister and surveyor. The correct letters and notices outlining the extensive repairs needed to all parts of the demised premises have been served. Apart from a few incoherent phone calls and one letter which was contained defamatory allegations about me, the letters and notices have been effectively ignored. If the lessor cannot be bothered to assert her legal position as landlord effectively and I am at fault in any way, that is not my fault. I have given her every opportunity to reach a fair resolution, including an offer to pay for arbitration. What else can I do?
    It appears likely that the claim will go uncontested and the court date is drawing near.
    Last edited by BoruB; 25-11-2013, 14:26 PM. Reason: Additional explanation

    Comment


      #32
      Hi BoruB
      Please keep us informed of progress as the situation develops.
      Thanks
      Ad

      Comment


        #33
        I will Ad, of course. And thanks to all who have commented for focusing my mind on the real issues, which led me eventually to the official advice on the Land Registry site. My claim funder (guess who) has today put a flea in my solicitor's ear for failing to pick up on the restrictive covenant issue, going on holiday when I needed advice and not having any provision in the meantime, which they promise on their website. I have now chosen another firm of solicitors to take over the case once it gets to court, although there may well be a summary judgment if the lessor doesn't turn up with any kind of valid defence.

        Comment


          #34
          The further information given in post 31 shows that the matter is quite complex. The landlord's failure to take action and preventing you from taking it is clearly a factor. I am not sure I can make any further comments that would be useful.

          Comment


            #35
            But in your #31 on additions etc the crucial phrase is "to the demised premises". If I recall both extensions were outside the demise.

            Of the building pertains to the building as described in the lease at the time of grant, and any alteration to "the building" as defined at that time would have to included by agreement or determination, which you seek, not by a default "its there so it is ".

            Even if a freeholder was aware of the work, they can choose not to act or enforce lease terms, that does not then make them liable. The propertyy may then become yours and any right to enforce covenants or assert ownership long lost, but that does not mean that they are now part of the building and its parts -walls etc.

            Even is she does not defend the court is likely to enquire along these lines so prepare on these, not solely your arguements. You might even consider this as a basis to acquire the freehold under the 87 Act.
            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


              #36
              The position is not entirely clear to me. There are three possibilities:

              1. An extension replaced an older extension which was within the demise.

              2. An extension was built within the demise on what was open ground when the lease was granted.

              3. An extension was built outside the demise.

              Factors which need to be taken into account include:

              1. Whether consent, if required, was granted or is deemed to have been granted.

              2. Whether the extension was properly constructed.

              3. The terms of the lease.

              4. The conduct of the parties.

              The position is far too complex for discussion in a forum.

              Comment


                #37
                I agree, partcularly as if I recall, there may have been agreement between a former leaseholder and former freeholder or head lessor, now long departed.

                I suppose the only other comment is that while playing offense ( as the claimant) you must also prepare for the defence- anticipating their line of argument. I cannot see the Court issuing a summary judgement on this and try to pass this onto mediation and arbitration.






































                n first.
                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

                Latest Activity

                Collapse

                Working...
                X