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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25440
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I now live in a retirement apartment which I purchased in 2011.

Resolved Question:

I now live in a retirement apartment which I purchased in 2011. Included in the sales brochure was a statement that among the benefits available to every resident was the provision of two guest suites "for use by friends or relatives". Millstream Management appointed by the landlord to manage the complex of 20 apartments and 2 cottages have now told us that they will taking one of these suites for the exclusive use of the overnight staff. I know of no one who is happy with this unilateral decision by the management company. In fact many wish to say no as this facility played a part in our decision to purchase in the first place.
My question therefore is do we have any legal power to stop this happening?
There is one other point. Exactly what facilities should be available for staff staying overnight and who should provide them, the residents or the landlord?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask is the freehold of the block owned by a third party or do you all own a share in the freehold please?
Do you know if there is a right to use the two suites referred to in your lease?
Customer: replied 2 years ago.

1. The freehold is held by a third party, Dunwood Properties Ltd.

2. There is no mention in the lease only in the sales brochure issued to all prospective buyers looking to purchase a retirement property.

Expert:  Joshua replied 2 years ago.
Many thanks. Does your lease not refer to a right to use certain common parts or share facilities? Most leases would contain at least rights to use grounds and access ways at a minimum? Are you certain there is no provision in the lease that deals with the suites in question?

If not do you still have the advertising brochure you refer to?
Customer: replied 2 years ago.

Thank you Joshua.

As far as a layman makes common sense of a legally written lease I have located a reference to the facilities available to us. Included within The First Schedule, Part 1, "Rights included for the Lease", Part II

Headed "Care and Facilities",

b) "the right to use and have the benefit of such additional services and facilities as are now or may in the future be made available by the Landlord to treat the tenant or for the provision of medical treatment the tenant paying the rates applicable for such facilities charged by the Landlord from time to time".

So much for the Lease but there one further reference to "The Guest Suite" in a document (Purchaser Information Pack) issued to all residents on taking up residence.

"The guest suite is available for visiting relatives or friends. A charge is payable for its use. Reservation details are available from the Care Manager. Priority may be given to a Relief Care Manager or visitor helping a sick resident . It is not intended to be used as accommodation for a nurse attending a sick resident except in cases of emergencies."

I hope this helps.

Expert:  Joshua replied 2 years ago.
Thank you. based on what you have kindly posted, that is not appear to be an absolute right to use the suite you refer to provided for in your lease. If this is the case, then so far as the lease is concerned at least, the landlord is free to withdraw the facility. If you were you were able to point to a specific clause in the lease that provided right to use that suite, the landlord would not have this option because it would amount to a derogation of grant of right under the lease. unfortunately, as no such right can be identified, this does not apply. However, it may still be possible for you to claim breach of contract against the seller if advertised the suite facility in its market material and promoted it as a valuable resource which in turn induced a number of you to make your purchase or short of this, at least was a substantive reason you decided to make the purchase on the grounds of misrepresentation. In order to bring such a claim, you need to do so within six years the date of your purchase and you would need to have evidence to demonstrate that the facility was promoted - from what you say, you have retained copies of advertising and promotional material similar should be satisfactory. If you can join together with other residents who feel similarly and who also have copies of such material, you could consider a joint action. the first step would be to contact the seller in writing and advise that the withdrawing of the suite amounts to a breach of contract and misrepresentation on the basis that the facility was advertised as being available to residents and misrepresentation from the substantive basis for you making a decision to purchase the property over other properties you were considering at the time. If you decide to proceed to court, you could find on your own or jointly with other residents consider making an application using a part eight claim form (this is a type of claim when the essential facts are not in dispute but one or more parties seeks a decision from the court):http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424 the threat of the above action may be sufficient to dissuade the proposed withdrawal of the suite. If not, and you consider that you may need to issue proceedings, if you can join together with certain other residents, this would share the burden of making the application or if you chose to appoint a solicitor, would enable you to share the costs. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
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Expert:  Joshua replied 2 years ago.
Can I help you with anything else or has the above answered your questions satisfactorily?