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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hello Joshua purchased my flat in 2001. I have experienced

Resolved Question:

Hello Joshua
purchased my flat in 2001. I have experienced great problems with landlord not enforcing the covenants of the lease. I now realize there is clear clause in our lease that states lessees cannot require enforcement.
Looking at the notes and explanation by the lawyer who acted on my behalf, I noticed he has explained all the schedules of the lease except this very important one. 1- Can I make a claim against that firm?
2- What is the position with mortgage company?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I clarify that there is no leasehold enforcement provision - namely a clause that states that the landlor dmust enforce covenants against other lessees on request subject to indemnity of costs?

Customer:

Our lease states "Lessee cannot require enforcement of covenants etc, by Lessors"


Customer:

I know it is weired but it actually states that "nothing in this lease shall be construed as entitling the Lessee to require the lessors to enforce any such covenants...."

Customer:

Because of this clause any compliant we make in relation to other lessees' breach of the lease goes to deaf ears as they don't have to enforce it.

Joshua :

Quite. This is an unusual provision and in fact places the lease outside that required by the Council of mortgage Lenders handbook - this are the rules that almost all mortgage lenders require solicitors to follow and the matter should have been reported to you and your lender by your solicitor. An indemnity policy can be obtained for lack of leasehold enforcement covenant and may be required by any buyer of the flat in the future. Your solicitor may be liable for the cost of that policy if he failed to advise you of the implications of the lack of enforcement covenant.

Joshua :

Is there anything above I can clarify for you?

Customer:

Well this is Church Commissioners for you!

Customer:

Isn't it too late to make a claim against the firm since it was in 2001 that I purchased this flat?

Customer:

Also if I tell the mortgage company, does it benefit me or they might even cancel my mortgage or they migth take action themselves against the firm?

Customer:

Sorry Joshua, I saved and exit, it is now shows as answered. Please could you answer the last questions. Thank you

Joshua :

my apologies for the delay in reverting to you. it is not too late to make a claim against the firm if you have only recently discovered the issue. the starting point is that you have a limitation period of six years to make a claim for negligence however, if you have only recently discovered the negligence, you can make a claim outside the six-year period - in this case, you have three years from the date you discovered the same to make a claim provided that there is no overall limitation period of 15 years from the point the negligence actually occurred

Joshua :

is there anything above I can clarify for you?

Customer:

Thank you. Would it be better to make a claim against the mortgage company or make them aware or is this a question relating to finance experts?

Customer:

Also There is a clause in our lease against hard floors. However landlord is issuing licenses to lessees to do it. Can they vary the lease like that for a lessee?

Customer:

Thank you

Joshua :

I cannot see any advantage in you notifying your mortgage lender of the issue at this stage. The approach would be to contact your original solicitor and raise the issue stating that you have just become aware of the matter as a result of [...] and you are most concerned and invite them to comment

Joshua :

if you are not satisfied with their response, you can escalate the matter to a formal complaint. The firm is required to provide with a copy of its complaints procedure and stick to the provisions of that procedure. If you are not satisfied with the outcome of your complaint, you can refer the matter free of charge to legal ombudsman who is able to make a decision in the matter which is binding upon the solicitor they not upon you

Joshua :

in respect of the covenant relating to hard floors, the landlord is able to provide consent in respect of any covenant under the lease. if this is causing a nuisance from the point of view of sound, ordinarily you would be able to ask the landlord to enforce covenants in respect of flooring, nuisance and so on have in the absence of the landlord cooperating, you may need to fall back on stature on nuisance provisions if the behaviour of an upstairs tenant is causing a nuisance they this can be weaker than relying on lease provisions themselves

Customer:

Thanks. I was just surprised that the law allows the landlords to change a provision of the lease for a lessee while I thought all lessees should have the same covenants.

Joshua :

a landlord is entitled to give a licence granting permission under any particular covenant or indeed can release one or more covenants under a lease in the absence of any provisions requiring them to enforce covenants in the lease. a lease is fundamentally a form of contract and accordingly, one party with the benefit of obligations of the other is able to release such obligations if this is their wish providing there is no provision preventing them from doing so such as a lease enforcement covenant

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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