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Matt Jones
Matt Jones, Solicitor
Category: Law
Satisfied Customers: 671
Experience:  I am a qualified and practising Solicitor with over 7 years post qualification experience
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, I have a 4 year shop lease which expires at the end of

Customer Question

Hi, I have a 4 year shop lease which expires at the end of this year but I am looking to leave early. Rent is paid in advance until May 7th. I am unable to maintain lease due to ill health and the stress caused by a number of issues surrounding the property. I entered the lease in good faith, I was advised new shutter had recently been fitted, as such I had no issue assuming responsability for maintaining and repairing the shutter. It transpired that the shutter was not installed correctly as such I have spent over £500 getting it repaired and a further £125 having new motor fitted, on each ocassion shop has been shut for days resulting in significant down time and lost business. I have recently been advised shutter was not installed properly and will continue to break. My landlord refuses to install a new shutter. In addition to this I have recently discovered my landlord did not have a building certificate for building work undertaken prior to the lease being drawn up, for the first 18 mths of lease the building failed inspection and certificate was only issued when additional work was undertaken. We shared the legal cost of the initial lease being drafted however I assume my landlord failed to advise the,Ayer of the building work or requirement for building certificate. I view this as a significant breach of trust on the part of my landlord. I paid over £1000 in insurance which would have been null and void if I had made a claim as it is my understanding it is illegal to let a building without the appropriate building certificate. If I leave early my landlord may pursue me for the amount owing on lease however could I counter claim on the basis of breach of trust and unreasonable behaviour if he opts to pursue me.
Submitted: 2 years ago.
Category: Law
Expert:  Matt Jones replied 2 years ago.
Matt Jones :

Hi there I will try and help

Matt Jones :

When the lease was drawn did you both have your owner Solicitors acting for you?

Customer: No, we agreed to half the cost of using the one solicitor
Customer: The outstanding rent owing till end of lease is £3500. Lease States I am responsable for repair and maintaining shutter not replacement. I have lost approx this amount in lost business due to shutter not operating as shop has been closed for days on end. Shutter has continually been repaired by the person who originally fitted it on landlords instruction. Landlord accepts it was not fitted correctly but is unwilling to replace or compensate me for lost trade or further repair. I only recently found out that building cert was not issued until I was 18mths into lease. Landlord initially advised everything had been completed prior to entry, I assumed landlords solicitor would have checked this. i was advised halving cost of agreement is the norm.
Customer: Legal fees were approx £400 which we halved. I fail to see how rent can be charged for an illegal let ie no building cert. my landlord owns several commercial properties and homes so would have been aware of this. The building cert was refused on basis that gas boiler flue was installed incorrectly. I recently accessed a letter from the local authority sent to landlord in 2013 advising of failed inspection with a note clearly stating it was illegal to lease a property without a cert. the building work including boiler were completed at point of taking up lease.
Matt Jones :

Thanks. To address some of the issues you have raised :- (1) It is much better to have a Solicitor acting for each party in a commercial lease matter. It is unlikely the Solicitor was acting for you (although I appreciate this is confused) and more likely that he was acting for the Landlord and you were simply contributing to the Landlord legal fees. if this wasn't fully explained to you you may wish to raise a complaint with the firm of Solicitors. If this is the case the firm would not have been acting in your best interest and would not have drafted the lease in the best way for you. In addition the correct due diligence would not have been followed. (2) When a tenant takes a property under a commercial lease they take it as they find it. All investigations should really take place beforehand, and I personally advise my clients that full survey should be be undertaken before they sign. I am a little confused about who is taking responsibly for the repair of the shutter. You have indicated that you are responsible for the maintenance and repair but not replacement (I assume this is how it is worded in the lease) and yet it is the landlord who is repairing it. Can you clarify why the Landlord has re-assumed responsibility? (3) You are right that the Building regulation approval should have been obtained prior, and that technically you were occupying a shop in breach of building regulation consent however I think the Landlord would only have to compensate you where this directly resulted in loss to you (i.e. if part the building fell down because of the lack of correct building work) where there is no direct "loss" I don't think this could form part of a claim

Customer: Hi, I will clarify re the shutter. When I took over the tenancy the landlord advised a new electric shutter had been installed. The lease States that I am responsable for maintenance and repair only, it does not state that I am responsable for replacement. The shutter has jammed shut on 5 occassions, the landlord has assumed no responsability for this, the landlord directed me to the person who installed it to arrange repairs on each occasion. On each occasion I paid for repairs. After the fourth repair I was advised the shutter needed a new motor. I advised the landlord I felt this went beyond my responsability to repair and maintain as the shutter required new parts, we halved the cost of the motor. The shutter broke again and landlord refused to cover cost of repair so I had no option but to pay. After the fifth time paying for repair, I got someone to look at shutter who advised it was never correctly installed as such it will continue to break. My landlord accepts the shutter was not installed correctly but is refusing to replace the shutter. On each ocassion the shutter has broke the shop has been closed for prolonged periods costing several thousands in lost business. The landlord recently spoke to the maintenance engineer who initially installed the shutter and he has agreed to repair the shutter for free when it breaks in future, however it can take up to a week for shutter to be repaired causing significant loss of business. I have also spoken to the engineer who acknowledges the shutter will continue to break and needs replaced, however he denies it was not installed correctly. He has also advised the landlord the shutter needs replaced but the landlord refuses to do so. It would not be difficult to prove the shutter was initially incorrectly installed as I have had several second opinions who all agree the initial install was not done right and it was the faulty install which is causing the damage, I do not however feel it likely that a survey would have picked this up as the shutter was operating fine at the point of the lease being signed. One side of the shutter is misaligned causing one side to fall lower than the other which over a few months causes the shutter to jam, on each ocassion this happens the shutter is further damaged. All agree the only permanent solution is a new shutter, as stated the landlord is refusing to do so. I do not consider this reasonable.
Customer: re the issue of no loss re no building certificate being issued, could I claim back my insurance costs which were null and void as I could never have claimed, the insurer would have refused to insure me if they had known there was no building cert. also if it is illegal to let a building without a building cert what are the legal consequences of breaking the law on this matter.
Matt Jones :

Thank you for your reply, and sorry for the delay. thank you for the clarification on the issue of the shutter. Leaving aside the fact that you want to end the lease early for the moment, and just focusing on the shutter issue I tend to agree with you that it seems the shutter would require a complete replacement, and to this end is beyond your responsibility under the lease. ON the balance of what you have said it appears there is an inherent defect in the initial installation. the Lease/Rent/terms etc were negotiation, at least in part, on the balance that you have a shutter that is at least in reasonable working order as you have said it was recently fitted. It as unreasonable for you to expect to have issues with it so soon into the lease. I think it is an argument that has legs and could be used as part of claim for loss. Does this constitute "leverage" to end the lease early? his is a more difficult question. By terminating the lease you are liable for loss without much question. It is quite clear cut. You would have to claim that the lack of a shutter is a fundamental issue that means the lease is unworkable/untenable. Gien that you have been running the lease for the best part of

43 years

Matt Jones :

(sorry pressed return by mistake)... best part of 3 years this works against this argument. I think the shutter issue something that could be brought as a separate issue, formally, then eventually you are then able to negotiate a settlement. You need to seek out a local firm of solicitors and let them have a detailed look at the terms of the lease in case there are other issues to consider, and then write to your landlord on this point and begin this negotiations.

Matt Jones :

Onto the issue of the insurance, I am not totally convinced that this is correct and they wouldn't pay out. However if you can gt written evidence of this then it is more fuel to the fire of the arguments I have set out above. As to the Build Reg issue my understanding is that this is more of a reactive liability than proactive. If a person is injured, or part of the building falls down and there is a complaint then the council would take action. In some cases the councils powers to take action are limited by time (depending ton the location and work involved)

Matt Jones :

I hope this helps and please rate me positively if i have helped. the question wont close and you can ask further questions later on on this subject if you think of them

Customer: Hi many thanks for advice, I am meeting landlord on tues, if there is no agreement reached, I will write to him formally advising the basis on which I intend terminating lease and will then contact solicitor. Re I'll health, the condition I have is to a large extent triggered by stress, I have advised landlord that the shop being shut and lost business is contributing to my ill health. At present one side of the shutter is falling by approx 1cm every week, once it reaches about 5 inches it is inoperable. Just a matter of time before I am shut again.
Customer: Thanks again, will leave positive feedback and may ask for further advice following meeting on tues.
Customer: karen
Matt Jones and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.
Sorry more info, re the fact that I am 3 years into my lease, I only recently sought a second opinion on the shutter at which point I was advised instal was not done properly, up until that time, I felt I had no option to have it repaired as the lease stated I was responsable for maintenance and repair. The engineer who installed it is clear that it needs replaced however landlord refuses to replace it. It is only recently that I have discovered there was a problem with install and that it needed replaced. If I had previously been aware of this I would have raised it then. There is also the problem with the accumulated losses. I took the first bill for repair and subsequent lost trade on the chin however the subsequent repair bills and lost trade has had a significant impact financially. I believe I have acted at all times reasonably and in good faith unlike my landlord. To further complicate matters the engineer involved with the initial install and repairs would only accept payment cash in hand, given the urgency of the matter, I had no option but to pay to ensure my business was operational as quickly as possible. There are however numerous witnesses who were aware shop was closed due to broken shutter, apology for closures was also posted on fb.
As previously stated if I had been aware of problem with install earlier I would have taken action at that point. After the fourth repair, I was advised it was the motor which needed replaced, a motor was installed for which both myself and landlord halved the cost, only to discover following a further repair this was not the case. I suspect my landlord may potentially have a claim against the shutter engineer, however this is not my concern.

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