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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience:  I have been practising for 30 years.
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Dear Just Answer, i have an on going issue between myself

Customer Question

Dear Just Answer,
i have an on going issue between myself and my freehold holder who happens to reside downstairs. After complaining for many years about the level of noise coming from my flat, (such as snoring and moving of chairs ) I added sound proofing and changed the bathroom and kitchen in the process. This was costly and had to rent out two of my 3 bedrooms, ( i still reside in one of the bedrooms) to get some of the money back. She, the freeholder now wants to take me to court and has instructed a solicitor to inform me that I have broken the lease on two counts 1.) Unauthorised underletting and 2.) Carrying out structural alterations and changes without her consent. However, she is willing to grant me retrospective consent on both count but with some heavy caveats. She wants me to pay for a license for the underletting, but I can not rent out the room directlly above her room. For the changing if the bathroom and the kitchen, she wants me to pay once again for a license and surveyor to see what structural changes have taken place and pay for any damage my builder may have caused. And on top of that all her legal bills to date of £4,786. My solicitors are not has helpful as I was lead to believe and have more or less encouraged me to give into her demands . I was wondering if I sent you the lease if you could let me know what your thoughts are and if i have a case or not.
I have not changed any of the load bearing aspect of either rooms, nor the shape of the buildings. I simply took out a very old bathroom and kitchen and replaced it with a new one.
Yours June Lawrence
Submitted: 8 months ago.
Category: Law
Expert:  Nicola-mod replied 8 months ago.
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Expert:  Nicola-mod replied 8 months ago.
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Customer: replied 8 months ago.
I would like to send you the lease. Is that possible ?
Expert:  Nicola-mod replied 8 months ago.
Hello,
We will continue to look for a Professional to assist you. It may be possible once a Professional takes on the question.
Thank you for your patience,
Nicola
Expert:  F E Smith replied 8 months ago.

I will try to assist you with this.

You would be able to take the bathroom out and replace it with a new one. That is not a breach of the covenant in the lease unless it specifically says that. If she took you to court on that, she is likely to lose.

Do you have any specific questions I can answer for you?

Customer: replied 8 months ago.
Dear FE Smith,Thanks for getting back to me, and also for the advice. It would be great if you could let me know where this information can be found as my Freeholder is referring to the lease and I am unable to find any statute which can actually help me.Many thanks,June
Expert:  F E Smith replied 8 months ago.

I just need to do a little bit of research because it is case law, the name of which escapes me, but let me exaggerate to prove the point. Using the landlords school of thought,you couldn’t change a light fitting or the wallpaper! Is the freeholder seriously suggesting that?

Can you attach the lease or let me know the alterations covenant wording?

Customer: replied 8 months ago.
Dear FE Smith,Please find part of the lease and the deed of variation. However, I will attempt to send the main body of the lease but I am being told that it may be just too big.June
Customer: replied 8 months ago.
Hi,The file is 5.3 MG. Have you got a suggestion that can help over come this?June
Expert:  F E Smith replied 8 months ago.

If you can’t Zip the file, all I need is the wording of the clause with regard to any alterations to the property

Customer: replied 8 months ago.
Hi there,Managed it!!!June
Customer: replied 8 months ago.
Hello, FE Smith,I happen to find this comment on the original Report On Title made in when I first purchased the flat. It makes reference to the dates of when the Conveyances, and they may probably too old to be enforceable. Do you have any thoughts?June
Expert:  F E Smith replied 8 months ago.

Thank you.

Clause 4 on page 5 I can’t quite see the subparagraphs because the ink seems to have come through the page from the back, about a third of the way down the page, “not to make any structural alterations or structural additions to the demise premises nor to……. remove any of the landlord’s fixtures or fittings without previous consent. “ which says that you can’t actually remove or change the bathroom or the kitchen. The landlords fittings in a residential property is not a common provision, and even if it is in there, it would normally say to repair or replace any which have become beyond use or broken.

It is the final part of this, “landlords fixtures or fittings” which is relevant here. Landlords fixtures or fittings are not defined and hence it would come down to a normal common meaning. That would probably include the bathroom and the kitchen.

BUT

Under clause 4h you have got to yield up the premises in good and tenantable repair and condition including the landlords fixtures and fittings, BUT you can’t do that if the landlord will not allow you to replace them which, on a strict interpretation of the lease, under clause 4 the landlord can do.

So either the landlord allows you to do this in order view to comply with the covenants in the lease or they refuse and you can’t.

Hence, if this went to court, the court would use the blue pencil test and the conflicting clauses would be struck out.

Customer: replied 8 months ago.
Hi,The section that is unclear says........nor to erect any new buildings thereon or remove any of the landlords fixtures or......June
Expert:  F E Smith replied 8 months ago.

On a strict interpretation, you cannot surrender the premises with the landlord’s fixtures in good repair if the landlord will not allow you to replace them. That’s why said the if this went to court, court are likely to strike out the 2 clauses. What the landlady is doing is just reading the parts of the lease which suit her

Customer: replied 8 months ago.
Hi,I have just notices the end of 4h it goes on to say " ....all landlords fixtures and fittings (if any) in good and tenantable repair and condition.I am not sure if its worth mentioning but I did not buy the flat from my Freeholder, I bought it from the previous owner Mr Vic Jones. This would have been the second time Ive changed the bathroom and the first for the kitchen.June
Customer: replied 8 months ago.
Hi FE Smith,Many thanks for explaining that to me. You have gone to so much effort.June
Expert:  F E Smith replied 8 months ago.

Incidentally, she can only charge you for the licence for the changes if there is a provision in the lease whereby she can charge you for the licence otherwise, she has to stump up the costs for that.

There is case law whereby if a restrictive covenant has been breached for 20 years, then it’s no longer enforceable. To my mind therefore, if the bathroom was changed last time or has been changed since the lease was drafted, and a 20 year period as a lapse, it’s no longer enforceable. The case is Hepworth v Pickles.

Please don’t forget to rate the service positive. We can still exchange emails.

F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 8 months ago.
Hi FE Smith,OMG! You are good! That had not been brought to my attention before re: that I was not obliged to pay to for the licences unless there was a clause in the contract. Thats very interesting.Regarding the bathroom and the kitchen, I know for a fact that they add both been changed by the previous own (Mr V Jones) since the lease was drawn up in 1979. Does that count if the were changed before I actually moved in? Or does it have to be during my occupancy?Also, does the same thing apply to the flatmates I now have? When I moved into the property back in 1997, it was with a then boyfriend. When that ended, I simply got someone else to help out with the bills. The previous owner had lived at the address with a number of girlfriends until he left. The twenty year rule does not apply to me directly, un-fortuntuaty as I am tantalisingly short by one year. That is such a shame.June
Expert:  F E Smith replied 8 months ago.

I haven’t studied the lease in detail because it’s out of focus very difficult to me to read so I just looked for the clauses relating to alterations and repairs.

I’m assuming you’ve read the good copy and there is no provision.

I’m not saying the clause is not in there, I’m just saying that if it’s not, they can’t charge.

Previous period of occupancy is added to yours. She cannot allow things to go ahead in the past four years and then selectively try to enforce against you because she’s annoyed about something else.

If you got 19 years, then the previous period of occupancy would be added to that fortunately

Customer: replied 8 months ago.
Hi FE,Its such a shame you are unable to read the lease. Perhaps if it is printed off, it may be more clear. What do you think?Part of the retrospective consents the Freeholder is trying to persuade me to agree to, is for pay of the licences and to pay for ALL her legal fees. This would imply its not in the lease otherwise she would force me to agree.This new information you have now given me is what is known as a "game changer", if my understanding is correct.As both the bathroom, and the kitchen have been changed since the Conveyances dated Feb 1894 and May 1979, which was initally during the period Mr Vic Jones had been at this address, am I right to think that this the terms of the lease were and have been already breached for more than 20 years, so I don't need a special licences? However, for my peace of mind I will offer to find and arrange for a Surveyor to give the property a once over at my expense. I don't want her causing any deliberate damage at some later stage and blame it on me.Regarding the Underletting, once again if I can show with the help of Mr Vic Jones that a mixture of individuals have been living at this address, who were not considered "one family" will mean that a breach took place many decades ago, then like the alterations, I will not need the licence. Am I correct in this assumption?June
Expert:  F E Smith replied 8 months ago.

I printed the pages off and it’s blurred. It looks out of focus. I don’t think it’s a problem with the lease itself but a problem with the camera which took the picture.

However you can read the lease because the reference to paying the costs will be quite obvious. Just read it from end to end.

I think you’re probably correct that she wouldn’t be forcing you to pay her legal costs in respect of the licences, she would just be sending you the bill and referring to the clause in the lease. What you can do is get her to read the lease and say that you are prepared to consider paying her legal costs if she can point to the provision in the lease where it says thethe leaseholder has to pay for any licence.

It’s not necessarily a game changer but it just gives you a bit more leverage.

The previous changes of bathroom which have gone unchallenged for more than 20 years would mean that is no longer enforceable in my opinion. It doesn’t matter that it was during the period of the previous occupier.

I agree with you in your assumption. Her lawyers may not and it would be for a court to decide. It’s not something which if I was her I would be rushing to court over because with the nature of the change, and it being an improvement, the court is highly unlikely to make you put it back and is highly unlikely to foreclose on the lease. I don’t know what this woman is trying to achieve apart from being awkward. The court would see that.

Customer: replied 8 months ago.
Good Morning FE,This is the email I have just received from Vic Jones."Hi JuneSorry to hear you’re still having issues with Rosie. She can be a very difficult person. Probably more so now that she is older.Why on earth she purchased the freehold in the first place I have no Idea. I also had no knowledge that there were any restrictions on the lease.Of course the attic is your space. How could Rosie access it? How can she restrict you if you want to convert it? The Velux windows I had installed after about 5 years after I moved in when the new roof was installed (which I paid for in total)I’d be extremely surprised if the lease prevented you from renting out any of your rooms. You own it as a private dwelling and can do with it as you wish within reason. She used to complain occasionally when I was there about noise, but that would apply if there were tenants there or a family. Probably would be noisier if there were young children running about.I’d get that lease checked out fully if I were you.If it helps, I left the property in July 1997 after living there 18 years, so I must have moved in in Spring of 1979. The kitchen (not fitted) and bathroom were new when I moved in. I only wood panelled the bathroom after about 10 years and had a new kitchen fitted after about 5 years. I had room mates from the beginning for at least 10 years. Rosie knew that as she met them on many occasions. I ran a business from the small bedroom for nearly 10 years. I don’t think Rosie knew that until she had an accident at work and was at home convalescing. She must of heard my comings and goings and delivery people arriving at the door etc. She must have just purchased the lease and puffed up with power, started to question me whether I was using chemicals or machinery in my business (sounded like she was reading directly from the lease) I was always very direct with her and told her of course I wasn’t.She never bothered me again or mentioned, the attic, letting out of rooms or running a business.Hope this helps you.Best wishesVic"Which meant not only did he run a business from this address, he has flat mates who The Freeholder met with, and also had the bathroom and kitchen fitted after 1997. I will take your advice and ask her where it states in the lease I am to make any payments, and suggest that both breaches have been previously unchallenged for more than 20 years a precedence has been set.Between you an me I do not have the fund nor financial backing to go to court so I am hoping she will back down in this instance.Fingers crossed and many thanks.June
Expert:  F E Smith replied 8 months ago.

Thank you. With regard to subletting, once again, unless it says that you’re not allowed to sublet, then you can do freely

Customer: replied 8 months ago.
Hi FE,The exact wording I can find relating to occupancy and under letting are on page 6 section g and page 12 section 1. Please see attached
Expert:  F E Smith replied 8 months ago.

Clause g only refers to under letting in the last seven years of the term which is not a problem for you

1 of the First schedule would stop you using it as a holiday let but not letting it on a six-month Assured Short hold Tenancy.

Customer: replied 8 months ago.
Hi FE,Thanks for that, but thats exactly what I have done. I have let the rooms out on a short term term tenancy, with the option to roll over if we are both happy. So let me get this absolutely clear, "The demised premises shall not be used for any purpose whatsoever than as a private dwellinghouse in the occupational of one family nor any purpose from which any nuisance annoyance loss damage or danger may arise to any owner tenant or occupier of the Flat or of any other property in the vicinity or neighbourhood nor for any illegal immoral offensive or obnoxious purpose" . Is only referring to holiday homes lets? Where will I find a reference to that meaning and interpretation? This very wording is what The Freeholder is arguing over and says I am in breach off.I have read the Lease over and over again and it has no wording “The Leaseholder shall not underlet the Demised Premises without the prior written consent of the lessor or its agent (such content not to be reasonably withheld)”This piece of ammunition is so important.thanks so muchJune
Customer: replied 8 months ago.
Hi FE,My Solicitors have given a deadline to respond to the most recent letter from the Freeholder's Solicitors of Wednesday noon as she is going on holiday on Friday and needs time to process my response. Otherwise they are threatening court action. I am sorry to put such a tight time restraints, of this information, but its coming from my Solicitors.Many thanks,
June
Customer: replied 8 months ago.
Here is a second attemp at up loading the Lease
Expert:  F E Smith replied 8 months ago.

They are much clearer.

Can you let me have the solicitors letter?

What date is on it?

How long has this been going on for?

Expert:  F E Smith replied 8 months ago.

If you want me to word the reply to the solicitor, I can do that for you as an extra service. I will submit a proposal when I have seen the solicitor’s letter and had time to study the lease further.

Expert:  F E Smith replied 8 months ago.

I have 12 pages of the lease. Page 13 has gone awry. Can you let me have the others please?

Expert:  F E Smith replied 8 months ago.

I managed, between going cross eyed with the blurred images and the later clearer images, to read the whole lease. The only reference to costs is the cost of serving a section 146 notice in respect of lack of repairs by the tenant.

If you are using this for holiday letting, and you are not doing it on an Assured Short hold Tenancy, for a minimum of six months, then you are not using it as a private dwelling house. I have had several of these cases recently. It is classed as temporary accommodation not a dwellinghouse.

I think the costs the solicitors are probably referring to are going to be there costs of dealing with the alleged holiday lettings rather than the costs of dealing with the bathroom andkitchen issue.

That apart, I really need to see the letter from the solicitor and if you are doing holiday letting, you would be well advised not to let this get to court.

Further, if you have a mortgage, you will be in breach of your mortgage conditions unless holiday letting is specific only allowed the terms of the mortgage. It would be as well to check with your lender because I would be very surprised if your lender would allow this even if you have a buy to let mortgage because with my to let mortgages, they generally insist that the properties are let on a Assured Short old Tenancy

Customer: replied 8 months ago.
Hi FE,I think we have a misunderstanding. I am not doing holiday let on the property, nor do I have any intention to. I was just refering to the type of agreement I have with my flat mates. However, both flatmates are more than willing to change the agreement (even to no agreement) to suit whats best help me and this situation. The Freeholder does not know what kind of agreement I have with my flatmates, but has suggested a one year contract to reduce the turnover.I will gladly take you up on your offer of wording a response to the Solicitors letter. I will send you all the letters from both the Freeholders Solicitors and from mine, to help you build a clearer picture. I think it is probably a good idea to request an extension for the duration of my Solicitors holiday, so give you enough time to forensically go through all the paper work, ask questions and compose a detailed and well researched response (quoting case law if necessary) to demonstrate our intent. I will gladly pay your fee.June
Expert:  F E Smith replied 8 months ago.

In which case, you are probably better doing 6month (the minimum period) Assured Short hold Tenancy agreements. You can then show the solicitor that you have these tenancy agreements and that would be sufficient for the court. You don’t have to actually enforce them! You just have to appear to do so.

Customer: replied 8 months ago.
Hi FE,
Ok, that great news about the 6 month Assures Short hold Tenancy Agreements.June
Expert:  F E Smith replied 8 months ago.

I need the solicitors letter from you to do your reply

Customer: replied 8 months ago.
Ok I gathering everything together now.Sorry for the delay.
Customer: replied 8 months ago.
Hi FE,Please find the correspondence in date order. I hope you make make sense of it all and I haven't left any out.Many thanks,June
Expert:  F E Smith replied 8 months ago.

I have done your letter. I need your email address to send it to please

I couldn’t read the inserted replies from the solicitors in the attachment. I could read the letter from the solicitor and I can read all your letter to Mrs Leventi but the inserted emails from the solicitors are blurred.

You haven’t mentioned the light before. You need to remove that because it is trespass.

You also haven’t mentioned the Velux window,you would need consent for that. I haven’t mentioned it in my reply.

Please read the reply word by word and make any changes which are quite correct.you know the complete circumstances and where things are right at the moment, and I don’t.

Best wishes.

Customer: replied 8 months ago.
Hi FE,Actually, the light has been removed, and I did not put in the windows as I did not have permission.my email address is***@******.***June
Customer: replied 8 months ago.
Hi FE,I haven't received your email yet. My email address once again is ***@******.***I will read it very carefully and edit were necessary.Many many thanks,June
Expert:  F E Smith replied 8 months ago.

You have mail

Customer: replied 8 months ago.
Hi FES,
Got the letter, and will edit where needed of course. I just wanted to catch you before you go away and ask one question. 1.) You did not mention the dwelling used by one family miss interpretation re "holiday let " aspect of the lease directly. Was that because your opinion may have changed or you want her solicitors to point that out to her?June

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