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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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We have a Leasehold Hotel which comes under the 1954 act. Our

Customer Question

We have a Leasehold Hotel which comes under the 1954 act. Our freeholder owns a lot of property. The trust does a group insurance with NFU but we pay the premium ourselves for our premises. We have tried to put in a claim for subsidence to the driveway which is covered by the insurance policy. However when we submitted the claim, NFU said that the trust are the only ones that can sanction the claim. The trust has refused to do this and stated that it is our responsibility. We have a full repairing lease. Can they do this? We feel that the insurance company should be the ones to make the decision as to its viability. Are they in breach of the Lease? and if so what clause.
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year 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 if you have a copy of your lease available and if so if you are relatively famliar with its contents please?
Customer: replied 1 year ago.

hello Yes I have the lease here

Expert:  Joshua replied 1 year ago.
Many thanks. The lease should have two particular clauses which should be worded along the following lines (the wording will notbe identical).Your repairing covenant: The Tenant shall not be liable to repair the Property to the extent that any disrepair has been caused by an Insured Risk, unless and to the extent that...The landlords insurance covenant: the Landlord shall keep the Property (other than any ANY EXCLUSIONS) insured against loss or damage by the Insured Risks...Could you give me the exact wording of the two above clauses as they appear in your lease?Finally "Insured Risks" should be defined in the lease - can you check it includes subsidence?
Customer: replied 1 year ago.

Under the tenants covenant the only wording on Insurance is damage by insured risks excepted (save where the policy of Insurance in respect thereof is vitiated avoided or forfeited or the payment of the money thereunder or of any part thereof is refused or withheld.

Under the Landlords covenant - Unless the insurance thereon shall be void through or by the act or default of the tenant to insure and keep insured the Demised Premises in a sum not less than the full value thereof against the Insured Risks in some Insurance Office or with an Underwriter of repute (a summary of insured risks the insurance premium, the name of the insurers and confirmation from the insurers that the last premium has been duly paid to be supplied to the tenant on request but not more than once a year and in the case of destruction of or damage to the Demised Premises or any part thereof from any of the Insured Risks (so as to make the same unfit for occupation and use) as soon as practicable to apply any monies received in respect of such insurance in or towards reinstating the same.

NFU insurance states that we are covered for subsidence. When we phoned them to put the claim in, they did not object to it but they said the Trust had to submit the claim but they told us we could handle the claim if the Trust gave permission for this to go ahead.

Expert:  Joshua replied 1 year ago.
Thanks that is great. Could ou also give me the wording from your "repairing covenant". As you know this the covenant(s) that requires you to repair the property (being a fully repairing lease).
Customer: replied 1 year ago.

Throughout the term to cleanse repair support uphold maintain and keep in good tenantable repair and condition and in whole or in part replace or renew as necessary the demise premises (including the surfaces of the floors thereof and the glass in the windows and the doors thereof and all additions and improvements thereof and the Landlords fixtures thereon and the drains, pipes, sanitary and water apparatus and boundary walls, gates and fences in good tenantable repair and condition in all respects) and to replace from time to time with others of similar character and of equal value all of the Landlords fixtures and fittings as and whenever necessary damage by Insured Risk. Then it carries on to what we said previously.

Expert:  Joshua replied 1 year ago.
Thank you very much for the above and my apologies for the delay in reverting to you owing to the time of day.Your lease provides that you are not required to repair insured risks and that the landlord is required to maintain insurance and apply insurance monies to reinstatement. Some leases contain an additional obligation for the landlord to make insurance claims when damage occurs which is covered by an insured risk but even if yours does not contain such a specific obligation as many do not the landlord is still under an implied obligation to make a claim and to do so promptly following the decision in Vural Ltd v Security Archives Ltd (1990). In this case the landlord was under a duty to insure and covenanted to apply insurance monies received to reinstatement. The court decided that the landlord was under these circumstances under an implied obligation to claim the insurance monies and to do so with reasonable speed and further (because in this case the landlord delayed making a claim) that the landlord was liable in damages for the tenant's loss caused by the landlord's delay in making a claim. Accordingly you may wish to draw the landlord attention to the authority and reserve your position in respect of any loss you are suffering owing to the delay in the landlord pursuing the matter and advise that if the matter continues to persist you will have little option but to apply tothe court for an order that the landlord makes a claim togehter with costs and if applicable a claim fo losses suffered owing to the landlords delay. You can apply for an order from the court that the landlord makes a claim using the following form:http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424 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 I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello thank you very much excellent

Expert:  Joshua replied 1 year ago.
A pleasure

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