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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hi Alex,Please answer a new question for me. Same Private Ltd

Resolved Question:

Hi Alex,Please answer a new question for me. Same Private Ltd Company. Lease dates from 2006 when 25 apartments were sold.My question concerns Clause 8 Enforcement of Covenants of Other Tenants. In summary it states at the request of the tenant the Management Company will enforce ...performance by other residents of covenants and conditions ..subject to following conditions one of which is as follows-
the tenant will indemnifythe Man Co.against all costs,expenses,losses and liability incurred in relation to enforcement. The other conditions say much the same.
In view of the above I have questioned the wisdom of the following notice from the managing agents-"I would kindly request that residents move their personal items around the bin store such as goal posts etc as we have recently received a complaint from a resident/shareholder.
Please understand that no items are to be stored on the estate as this is in breach of the covenants within your lease(s) which you signed on completion of the sale of your property. All items must be removed or they will be disposed of with the cost coming from the service charge."
There is no specific covenant on this point that i can see but clearly the Man.Co.will have general powers to deal with this amongst all the clauses of the lease.
If costs were incurred through either removing the items or responding to owners taking legal advice or claiming compensation etc it seems to me there could be some difficulty here.
The items concerned like goal posts and benches have remained in place for several years .
A previous notice in May 2011 from the Man Agent ( not referring to any complaint from a resident/shareholder ) went unheeded with no action despite a deadline for removal.
My question is was I justified in questioning the correctness of the wording especially " with costs coming from the service charge"in view of the clause 8 wording? I beleive that such leases are sometimes changed so that responsibility to enforce covenants and payment of costs is taken on by the Man Co. Any other background comment would also be helpful. We have a Man Agent who has not bothered to become familiar with the lease which I find unacceptable. Thanks,Peter
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts :

Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Yes you would be justified in doing that. As you said it seems unfair as they move the goal posts.

Alex Watts :

But you should certainly question it as it seems unfair and contradicts itself.

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Hello Alex,I have only now got the screen back. Could you put this lease clause into perspective please. How significant is it. One of my concerns is that not making all aware that if a tenanrt wants to enforce a condition they will have to pay any costs could encourage others to take action which is not necessary and not generally supported. On reflexion I feel I may be being pedantic but hope not.Can you give me any reassurance that my thinking is reasonable?

Alex Watts : They really state they can recover their charges from the tenant. I read it that the managing agents will pursue the tenant for a breach for which they would be liable for any costs, rather than coming from a service charge.
Alex Watts : Yes I read it if the tenant wants to enforce the offending tenant would be liable not the complaining tenant.
Alex Watts : I hope this helps.
Customer:

Hello Alex, If this is the case why does the lease say that they require an indemnity from the complaining tenant?

Alex Watts : I agree this is very strange. If someone is following the rules there should be no breach.
Alex Watts : Indeed I can't see how they can charge a tenant for enforcing what the other tenant should already be doing!
Alex Watts : It seems grossly unfair and capable of challenge as an unfair term
Alex Watts : Does this assist?
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