Landlord breach - undemised terrace

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    Landlord breach - undemised terrace

    Hi. If I'm covering ground that's already well travelled my apologies, please re-direct me.

    I entered into a Tenancy Agreement for a flat about 6 months ago. It's a terraced house that has been divided into flats and my flat is on the ground floor.

    The ad for the flat advertised 'direct access to a terrace', the plan showed a terrace as part of the property, the lettings agent took me out onto the terrace and said how lovely it would be to go outside during Covid / to entertain after Covid. It's a big terrace (26'x23') and this is central London so it was a signficant inducement to take the flat.

    I live on the ground floor, this terrace is the roof of the lower ground floor flat.

    I received messages from the building society (via my LL) to remove my garden furniture from the roof terrace. The messages originally said it was because of building works. I agreed to let my landlord take my garden furnture away for storage while the building is making repairs to the roof.

    Now, I've learned that the terrace is undemised. The LL doesnt seem to have any legal rights such as an easement to use it. And he doesnt have the consent of the builing (presumably they jointly own it as freeholders). He's also told me that the building opposes the use of the roof as a terrace because the structure isnt reinforced for that purpose.

    The tenancy agreement includes a requirement that the LL obtains necessary consents from other landholders / mortgagers etc. But I would assume that the LL advertising the terrace that I cannot use bc he doesnt hold the necessary rights is also misrepresentation at law.

    I had issued a letter on March 26th asking for my use to be restored by April 5. That didn't happen.
    My intention is to now issue a final letter advising that if there isn't a safe terrace to use with all the necessary rights/ consents within 5 business days I will be entitled to issue Notice to Quit. Does that sound right?
    And how much notice am I obliged to provide under Notice to Quit?

    Thanks very much for your advice.

    #2
    Originally posted by sp1 View Post
    And how much notice am I obliged to provide under Notice to Quit?
    Please answer the questions in the link below with exact dates, for an answer to that question.

    https://forums.landlordzone.co.uk/fo...om-new-posters

    Comment


      #3
      Is there a door or french windows onto the terrace?

      Does any other flat have access?

      Comment


        #4
        Thanks - and apologies for not knowing the norms. I think the questions I really have are:
        1.) am I right in thinking this would be a valid termination for breach; and
        2.) the process for terminating for breach - eg. how much notice does a tenant need to give in a notice to quit?

        Thank you - I really appreciate the assistance.

        Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)?
        England

        Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?
        Sole tenant.

        Q3 – What date did current TA start dd/mm/yy?
        21 /08/ 2020

        Q4 – How long was initial fixed term (6/12/24 months / other)?
        24 months. Break clause on 2 months notice. Can be exercised by either party. Notice can't expire till August 22 2021.

        Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?
        Payable by equal monthly payments due on the 20th of each month.

        Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?
        Yes. July 17 2020. Paid into a deposit protection scheme.

        Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).
        I have not yet given notice to quit. I actually wanted to know the process for doing that (eg how much notice must I give in my Notice to quit)

        Q8 – Does the landlord live in the same property as the tenant?
        No.

        Comment


          #5
          Originally posted by Lawcruncher View Post
          Is there a door or french windows onto the terrace?

          Does any other flat have access?
          There are french doors onto the terrace from my flat.

          The lower ground floor flat has put a ladder up in their courtyard and the repair workmen have been climbing this ladder to access the roof/terrace. But I would say that my flat is the only one with true access.

          Comment


            #6
            In that case it is entirely possible that the flat includes the terrace or a right to use it even if the lease does not say so. See this thread: https://forums.landlordzone.co.uk/fo...d-in-the-lease I suggest you draw your landlord's attention to it.

            You do not have the right to end the tenancy on account of the use of the terrace being unavailable. If you cannot get back the use of the terrace I think you need to say to the landlord that he either reduces your rent or agrees to bring the tenancy to an early end.

            Has anyone actually checked that the terrace is unsafe? The fact that there are doors leading onto it suggests it was intended to be used, but that does not of course mean it is safe today.

            Comment


              #7
              Hi. Thanks a lot for answering. Do you believe it is insufficient grounds to end the tenancy because you feel that not having use of the terrace doesnt deprive me of the fundamental thing that the tenancy agreement covers (ie. accommodation) ? I can see that.

              But I also think that this is cat-fishing - the LL advertises a lovely terrace that they dont have the rights for and then when the tenant goes to use it, the LL tells them that actually they can't use it bc the LL doesnt have the rights. Bait and switch. That feels like I was induced to contract based on a misrepresenation and therefore should be grounds for termination. Particularly bc outdoor space is such a selling factor in central London. And surely securing the necessary permissions is a material clause in the TA?

              Id completely agree if it were something out of the LL's control rendered the terrace unusable for a period - eg necessary repairs. But this feels much less fair.

              Thanks for the point about the LL potentially having the rights. I'll try and suggest it to him.

              Comment


                #8
                There is no way of knowing what was in the landlord's mind at the time of the letting. However, if someone buys a flat with french windows giving exclusive access onto a roof terrace I think he is entitled to assume that he has the right to use it, especially if the terrace is surrounded by a parapet or railings.

                There are two possibilities here.

                One is that the terrace is included in the demise of the flat. If that is the case then you can use the terrace.

                The other is that the terrace is not included. Whilst a tenancy is a contract it is also an interest in land. That complicates things and in effect means that not all the general principles of contract law apply almost to the point that landlord and tenant law and contract law have to be considered separate branches of the law. The right to rescind for misrepresentation is only available in very limited circumstances. I do not think your circumstances come within the exceptions. Your remedy is damages.

                Comment


                  #9
                  Thanks very much for your help Lawcruncher . Much appreciated

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    There is no way of knowing what was in the landlord's mind at the time of the letting. However, if someone buys a flat with french windows giving exclusive access onto a roof terrace I think he is entitled to assume that he has the right to use it, especially if the terrace is surrounded by a parapet or railings.
                    I wonder if the most likely scenario is that the basement extension was developed after the leases were drawn up and its possible, (maybe even likely) that its roof is not load bearing. If the ground floor flat owner has fitted french doors leading onto it without the owners knowledge or consent then surely that property wouldn't have a right to use it as as a terrace? If that were the case and the landlord had no right to use it as such, wouldn't the tenant have a right to unwind the tenancy under consumer legislation?

                    Comment


                      #11
                      Whether the terrace is or has become part of the lease has to depend on what the lease says and history.

                      I am not aware of any legislation which allows a tenant to bring a tenancy to an end on account of misrepresentation by the landlord.

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post
                        I am not aware of any legislation which allows a tenant to bring a tenancy to an end on account of misrepresentation by the landlord.
                        I think the Consumer Rights Act 2015 allows that possibility doesn't it? https://england.shelter.org.uk/legal...ive%20practice.

                        Comment


                          #13
                          I somehow managed to miss that one.

                          Anyway, it is too late for the OP as the time limit is 90 days from the start of the tenancy.

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