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propertylawyer
propertylawyer, Solicitor
Category: Law
Satisfied Customers: 270
Experience:  Property Solicitor with expertise in commercial and residential property transactions.
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My rented flat became vacant on 03/04/2016. The windows were

Customer Question

My rented flat became vacant on 03/04/2016. The windows were very old and and had condensation, so I decided to have new windows installed before renting out.
I contacted the council landlord to get a deed of variation for this purpose. On 19th May Katie Alford sent an e mail saying: “Please be aware that due to possible redeveloping of the site we would advise you not to proceed with applying for a lease variation at this time as should the site be redeveloped there would be no reimbursement for money spent on the property, such as for the deed of variation and cost of the new windows.
So I decided to have the windows repaired for which Barnet Homes is responsible. This was a quicker option as I could not afford to have my flat untenanted much longer. It took 2 weeks for their surveyor to come (on 12th July) and inspect the flat and he noted down the windows which needed repair.
On 16th August Paul Sheard wrote, “Dear Mr Shah, further to my inspection on 12/7/16, I can confirm that 16no double glazed units will need replacing due to interstitial condensation between the panes as well as 3no. timber subcills to the rear elevation. I have checked with our major works team who advise that there are no programmed works planned to the communal parts of the block in the immediate future. I have requested a quote from our contractor, Mears for replacing the double glazed units and subcills together with the cost of providing an independent scaffold for access. When I have the quote and carried out any leasehold consultation, if applicable, I will be in a position to start the work and be able to confirm a start date with you.
I do not know as to how long this is going to take. My flat has now been vacant for nearly 5 months and and sofar I have sustained a loss of £7500 in rent and £600 in council tax.
As there are no development proposals at the moment, My priority would be to have new windows. But this would take a long time to get the necessary permissions.
What if I was to have windows replaced without deed of variation and then apply for retrospective permission? Or is there any other option?
Submitted: 6 months ago.
Category: Law
Expert:  propertylawyer replied 6 months ago.

What type of lease do you have?

Why do you think you need a deed of variation?

A deed of variation is used to alter terms of the lease. I do not think you would need this to change the windows.

Do you have the lease in pdf format? I can review the lease and advise. However, as leases are substantial documents this would be an additional service. A lease review is $30. Is this acceptable to you?

Customer: replied 6 months ago.
I am not able to upload the pdf of thelease because of the size of the file. Any suggestions?
Customer: replied 6 months ago.
It is a standard residential lease.
Council says that one needs a deed of variation to change windows and external doors of the flat. At the moment council is responsible for the maintenance of these and the maintenance charges are included in the service charge. Once the deed of variation is in place, the leaseholder becomes responsible for the maintenance of these.
Council would repair the windows, but not replace them. To replace them I need a deed of variation.Relevant passage sin the lease are as follows:
I am responsible for, "internal surfaces of the doors and door frames and window-frames fitted in such walls and the glass fitted in such window-frames"I am sorry, I am not able to upload the large pdf file because of thesize.
Expert:  propertylawyer replied 6 months ago.

Are you able to scan in tranches, say 5 to 10 pages at a time?

It is difficult to advise without sight of the lease.

Customer: replied 6 months ago.
I have tried with 10 pages but was not successful. I will again try with lesser pages. Sorry, I have a hearing problem and hence would prefer e mail than phone.
Expert:  propertylawyer replied 6 months ago.

Email is fine.

Customer: replied 6 months ago.
I have now divided the whole lease into 5 parts. I hope I can upload them now.While you are looking at the lease, please find out if I need permission to change the bathroom and kitchen as well.
Expert:  propertylawyer replied 6 months ago.

I can see parts 1,2 and 3.

If you upload the other 2 parts and accept the additional service offer I will review and advise.

Customer: replied 6 months ago.
I accept the additional service offer. Herewith I am re-uploading part 4 and 5
Expert:  propertylawyer replied 6 months ago.

Thanks. Please can you accept the proposal. I think there is a link in the offer I sent to you. It will then show as accepted in the status icon on my question page. Thereafter, I will download, review and come back to you. Many thanks.

propertylawyer, Solicitor
Category: Law
Satisfied Customers: 270
Experience: Property Solicitor with expertise in commercial and residential property transactions.
propertylawyer and 2 other Law Specialists are ready to help you
Expert:  propertylawyer replied 6 months ago.

Thanks.

I have reviewed the lease. I also had to check some statutory provisions and cases.

As you rightly stated, the flat includes window frames/ door frames / doors and windows therein. The repairing covenant (V) states the tenant is to keep the flat in repair. (Xi) states you need landlord's consent to carry out various alterations. {i do not think you need consent to renovate the kitchen/bathroom unless you will cut main alter internal walls party walls other structures }. The question is whether the renewal of the windows is repair or alterations. There is a strong argument that it is repair, the landlord has confirmed following inspection that the windows are in disrepair and need replacing. Having said that the alterations clause is wide enough to catch replacing the windows as you will be altering an elevation of the flat. The alterations clause is known as a qualified covenant, I.e that landlord's consent is required. However, if the works can be regarded as an improvement (in this context this means increasing the value of the property - which it is very likely to be the case that replacing the windows will have a positive impact on value) then statute will imply that consent cannot unreasonably withheld. Meaning that the landlord has to allow the works unless it can reasonably withhold consent. The landlord has already stated that the windows are in disrepair and need replacing. Therefore it should give consent, there is no set time period but commentary on decided cases suggest days or a few weeks, not months, as is the case here.

If the landlord does withhold/delay then in certain circumstances the court can award exemplary damages.

However, if you proceed without consent there is a potential claim by the landlord that you are in breach of (Xi).

The document required is a licence for alterations, unless the council wants to vary the terms of the lease in some way to allow you to do these works.

I think your option is to put pressure on the council. That it is arguable that you need consent, as it could constitute repair and as such no consent is required, but statute and caselaw imply that consent cannot be unreasonably withheld and that the council's actions constitute withholding consent. If consent is not granted within 14 days you will refer the matter to court and in doing so you will seek an order for costs and consequential losses (loss of income) against the council. Mark any correspondence without prejudice save as to costs.

The council should not take this long to grant consent.

Customer: replied 6 months ago.
Thank you for your reply.
To prevent further delays, I was thinking of having the windows replaced without a deed of variation and planning permission and then ask for retrospective permission. It is not that the permissions won`t be given, but the process is very slow. This could save me 3 to 4 months.However, there could be a potential claim by the landlord if I proceed without consent. However, given the circumstances would the landlord make such a claim if I ask for retrospective permission? Even if the landlord makes a claim, would he succeed?Also there has been a further development. I have received ane mail from the landlord yesterday saying that it has commissioned a further survey of the block and there would be a period of consultation before any decision is made. (surveys like these have taken place in the past and no decision has ever been made).Three months back, Landlord hadsent me an e mail saying that “due to possible redevelopment of the site we would advise you not to proceed with applying for a deed of variation at this time as should thesite be redeveloped therewould be no reimbursement for money spent on the property such as the deed of variation (£1070) and the cost of the new windows”I am totally confused and seek your guidance.
Expert:  propertylawyer replied 6 months ago.

What redevelopment is planned?

Why do they need to survey the block?

Why do you need planning permission? Is the building listed?

As mentioned above, landlord's consent cannot be unreasonably withheld. Why can they not agree to it now, why is replacing windows in you flat conditional or dependent upon redevelopment?

I think that needs explaining. The landlord needs to be informed that you consider it acting unreasonably and withholding consent.

They also need to explain why you need q deed of variation because one would expect a licence to alter, that is what the consent to alterations is generally called.

Customer: replied 6 months ago.
1. Following is the copy of the e mail I received yesterday:
Dear Mr Shah,
 
I write to advise you that we have recently commissioned a further survey of 92 & 96 Burnt Oak Broadway Flats.
 
I am due to receive that report at some point next week.
 
It is then our intention for our leasehold services department to meet with you and the other leaseholders in the block to discuss our options in terms of what work needs to be done to the block as a whole and what the potential contributions may be.
 
We are unable to comment further on any possible future development of the site as this is outside of our control.2. Planning is needed from Barnet council to change the windows. Deed of variation is needed from the landlord.3.Landlord is not denying the consent, but is warning me that if the site is redeveloped there would be no reimbursement for the money spent on deed of variation or the cost of new windows.
Expert:  propertylawyer replied 6 months ago.

Is the landlord proposing to install new windows throughout the block?

Expert:  propertylawyer replied 6 months ago.

Generally planning permission is not required to replace windows, only if listed.

Customer: replied 6 months ago.
I do not know if landlord is planning to install new windows throughout the block. I think some of the flats have already had a deed of variation and had their windows replaced.It is a requirement of barnet council that if the windows are being replaced in a block of flats, then the permission is needed.
Customer: replied 6 months ago.
I think the best option for the time being is to have the windows repaired by Barnet Homes (landlord). However, it is taking such a long time.
Its web site says that: The time scale for Repairing or replacing outside doors, windows, or repairing the roofs or chimney stack where the roof is leaking is 15 days.
However, it is now nearly 2.5 months and no repairs have been carried out. How do I put pressure on it to have the work carried out urgently?
Customer: replied 6 months ago.
My question has not been answered yet. Please reply.
Expert:  propertylawyer replied 6 months ago.

Apologies I was overseas and experienced connection issues. It is difficult as the windows are a tenants responsibility under the lease. Therefore you cannot use the lease and breach of covenant to apply pressure as you would in normal circumstances. Have you asked the landlord to repair? I got the impression that you were asking for consent to replace. Make a formal application for the landlord to repair and quote the website.

Customer: replied 6 months ago.
I have already asked the landlord to repair. Please,see mail below: Barnet Homes has already inspected the windows. Request was made more than 2 months ago. Then the windows were inspected by Paul Sheard. He has ordered the repair but nothing has happened so far. Barnet website says that the windows would be completed in 15 days. But it is more than 2 months. Could you please, let me know as to how to pressure them to repair windows soon?From: Sheard, Paul
Sent: 16 August 2016 14:50
To: '*****@******.***'
Cc: Wallace, Jacqueline
Subject: Flat 92a, Block 92-96 Burnt Oak Broadway HA8 0BE 
Dear Mr Shah, further to my inspection on 12/7/16, I can confirm that 16no double glazed units will need replacing due to interstitial condensation between the panes as well as 3no. timber subcills to the rear elevation.
 
I have checked with our major works team who advise that there are no programmed works planned to the communal parts of the block in the immediate future. I have requested a quote from our contractor, Mears for replacing the double glazed units and subcills together with the cost of providing an independent scaffold  for access.
 
When I have the quote and carried out any leasehold consultation, if applicable, I will be in a position to start the work and be able to confirm a start date with you.
 
Please do not hesitate to contact me on the telephone number below if you require any further information regarding this matter.  
 
Paul Sheard
Expert:  propertylawyer replied 6 months ago.

As I said this is difficult. Your landlord is assuming responsibility for repairs which you are liable for under the lease. The usual way to put pressure is be reliance on the covenants and obligations in the lease. In this instance you cannot as the landlord is not contractually obligated to repair.

Customer: replied 6 months ago.
If the landlord is not contractually obliged to repair, why does he include window repair as part of service charges?
Expert:  propertylawyer replied 6 months ago.

Good point. But the lease states what is part of the flat and the tenant is responsible for repairing the flat. Windows /frames are part of the flat. It cam become difficult when reality is not reflected in the lease.

Your argument is then that the landlord has created a course of dealings by being responsible for repairing the windows over a period of time.

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