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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I have a dispute with a commercial tenant who is refusing to

Customer Question

I have a dispute with a commercial tenant who is refusing to pay for service charges. I currently have a local solicitor handling the case which is getting quite complicated with arguements over whether the lease entitles us to charge for certain services. The solicitor representing me wrote the lease. The solicitor representing me confirmed that we were able to make such charges (percentage of communal electric, percentage of building insurance and percentage of total water supply) but he seems to be less sure of himself.
I am thinking that he might not be the best person to deal with the matter as I may have a claim against him in drafting the lease poorly.
We sent a certified Bailiff into the tenant (before we had notice of any disputes) on Wednesday, the Bailiff collected a part payment and issued a walking possession should the full amount not be paid by today. In the meantime the tenants soliitors have issued an injunction against the Bailiff preventing him from returning to collect the debt. We are all due in Court on Monday morning at 10am!!!
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.
Do you have a specific question?
Customer: replied 3 years ago.

Is the solicitor who drafted the lease the best person to deal with the matter as I may have a claim against him in drafting the lease poorly?

 

Does a clause in the lease saying. "the service charge in accordance with clause 3 (again there is an error in numbering of the lease document), and whenever a sum is overdue the Landlord is entitled to recover it as if it were rent in arrear." entitle me to use the common law remedy of distress for rent to recover this money and send in Bailiffs?

 

Who is the best qualified person to represent us at the injuction application on Monday morning? specifically I think I mean solicitor or counsel?

Expert:  Stuart J replied 3 years ago.

The clause allows you to use all normal remedies including forfeiture because the service charge is treated like rent. That is a normal clause. Usually in commercial leases you can simply peacably re-enter. You can only levy distress with a court order.

BUT it needs to be clearly defined what the service charge is and how much and what for. I assume it is defined in clause 3 or at least defined. It comes down to if it is payable.

If there is a dispute over the lease, the solicitor should now tell you to go elsewhere rather than sort his own mess out. That is a conflict of interest. He cannot do the best for you if he is also looking after himself!





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Customer: replied 3 years ago.

Your answer is very helpful


 


So was the Certificated Bailiff correct in entering and seizing goods (Distrain and then to issue a walking possession pending further payment.


 


I am finding it very hard to understand why the solicitor for the applicant/tenant is saying this clause did not entitle the Bailiff to Distrain and then issue a walking possession. Are you able to enlighten me?

Expert:  Stuart J replied 3 years ago.

He can only do that if the lease says that he can.

That clause DOES NOT entitle the bailiff to levy distress.

 

You can probably lock the tenant out (depending on the rest of the lease) but not distrain his goods

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