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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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I have a flat in the private sector and am in dispute with

Customer Question

I have a flat in the private sector and am in dispute with the freeholders on two grounds. Firstly my neighbour immediately above has installed laminated flooring which is disastrous as the construction of the block is an RC frame which needs 15mm Acoustilay insulation to reduce impact sound and airbourne sound to be reduced to an acceptable standard. My neighbour installed no insulation whatever.
The freeholders had informed all leaseholders that “this is an alteration to the property which requires the freeholders’ permission. The management company has strict rules about how this is to be carried out if permission is to be granted. Please contact the managing agents for further details.” . They also had some time ago introduced as they put it “a Regulation which therefore had the same weight as a Covenant and specifically adds with respect to laminated flooring that if carried without written authorisation “you will be held in breach of lease and as such you or your landlord may be subject to legal proceedings as is allowed under the terms of the lease.”
I wrote to them two years ago as agents of the freeholders many times and asked them to let me have the minimum insulation specifications acceptable. No reply, so I wrote to their solcitors again without reply. And I wrote to the neighbour asking her to confirm or deny that she had been granted the freeholders’ permission. No reply. All three received several letters, all by recorded delivery or e-mail. Eventually in order to prompt performance from the freeholders I withheld an element of service charges due, and have now been taken to Court.
In a preliminary Directions Hearing the Judge said why should I be saying that the freeholders were responsible when the noise was coming from the neighbour. I have been given 28 days to answer this. So here is the legal point I would be grateful to have advice on : I am keen to show that in the second issue I am defending in the case (which need not concern us here) that the freeholders are liable in the laminated flooring limb. Surely I should be able to succeed with the argument that the neighbour is clearly in breach of the lease, but equally so are the freeholders liable because (i) they failed to provide to me the insulation specifications without which I would not be able to take a case against the neighbour, and (ii) as freeholders they ought to have the interests of all leaseholders in mind and although they had been informed that a breach of the lease had occurred they had over a long period failed to take any steps badly disadvantaging myself.
As I say I would be very grateful for your comments.
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 if your lease contains a landlord enforcement covenant please - most residential leases do. Such a covenant will read along the lines that the landlord shall at the request of a tenant enforce the covenants of the lease against another tenant subject to indemnity as to costs etc. Does your lease contain such a covenant?
Customer: replied 2 years ago.

There is nothing in the lease where the landlord if requested by leaseholder A to take action against leaseholder B is obliged to do so. I wonder where that leaves us?

Expert:  Joshua replied 2 years ago.
Thank you. When did you purchase the flat roughly?
Customer: replied 2 years ago.

In June 2006

Expert:  Joshua replied 2 years ago.
Thank you. This leaves you in a difficult position. If the lease does not contain a landlord enforcement covenant as it should, the difficulty in this particular set of circumstances is that without a landlord enforcement covenant, the landlord is not obliged to enforce covenants against other tenants and there is no means to force the landlord to do so. Thre is no basis on which to withold service charge - save for a challenge in respect of the amount demanded. In respect to the judges question you are limited to pointing him to the covenant which the neighbour has breached though this does not make the landlord liable to take enforcement action so this is unlikely to be of much assistance. Unfortuantely as above without a landlord enforcement covenant the landlord does not have to take action unfortunately. The lack of an enforcment covenant is a serious issue. Your lease should include a landlord enforcement covenant and if it does not do so, then your lease is defective as against modern mortgage lending requirements and may be difficult to sell - however many solicitors do not spot the lack of enforcement covenant so the issue does not always arise. Your solicitor should have spotted the lack of the landlords enforcement covenant in your lease as part of the conveyancing process and his failure to do so would amount to negligence. You have a period of three years in which to claim against the solicitor for any loss you suffer as a result of his negligence subject to an overall limit of 15 years from the date of your purchase. You may wish to contact the solicitor for his comments on the matter referring him to the Council of mortgage lenders Handbook that requires a landlord enforcement covenant to be present in any residential lease in order to satisfy mortgage lenders lending criteria. If you are not satisifed with his response you can escalate your complaint to the Legal Ombudsman without charge:http://www.legalombudsman.org.uk/helping-the-public/#making-complaint In terms of how you may decide to proceed going forward you could look at exercising a right to manage or buying the freehold either of which would given the new RTM or freehold company in which you will have an interest to enforce covenants intead of the landlord. If you can be appointed to be a director of the RTM company of freehold company then you can take direct action yourself. You will however need 50% of the qualifying leaseholders to support an application to take over management of the building or to purchase the freehold. If you can generate support either option (though purchsing the freehold obviously involves capital outlay) will give you a greater measure of control and say in the management of the building generally and crucially allows for enforcement of covenants without the current landlords involvement. 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 3 other Law Specialists are ready to help you
Customer: replied 2 years ago.

I have made a further scrutiny of the lease to see if there was anything in it which would require the freeholders to take action if a leaseholder reported a breach of another leaseholder and found the following and wondered if you think this might assist me :

The freeholder covenants with the leaseholder that : “If and to the extent that the freeholders shall default in the performance of the covenants on its part contained in Clause 5 [this covers effectively that the freeholders keep in good order refuse in stores etc] and the freeholders shall have received written notice from the leaseholder specifying the covenant or covenants in respect of which such default shall have occurred (together with reasonable evidence of such default ) and requiring the freeholders to remedy such default then the freeholders will (and in any case in the event of such default whether or not it shall have received such notice from the leaseholder the freeholders shall be entitled to ) without prejudice to any other right or remedy of the freeholder under this lease perform or procure the performance in respect of which such default shall have occurred.” Thank you very much for your help.

Expert:  Joshua replied 2 years ago.
Thanks for the above. The clause you post is a landlord enforcement covenant though it appear to be limited to the covenants contained in clause 5? of the lease. Providing the breached covenant is contained in the part or clause referred to in the landlord enforcement covenant it would appear that you can use the above clause to require the landlord to take action.

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