Hello, I am LawDenning and I am a practising solicitor in a High Street practice. I have beenan expert on this website in UK law since 2008. During that time, as youappreciate, I have answered thousands of questions from satisfied users on avariety of subjects.
Becausewe are all in practice with clients and court and other users, I might not always respond in minutes,particularly evenings and weekends. Please bear with me in that caseIt is my pleasure to try and assist you with this today. Please bear with mewhile I gather some further information from you in order for me to be able toadvise you fully.
Is this heat indeed coming from upstairs? What proof do you have of that?
The reason I ask, is that heat rises so you wouldn't normally feel it downstairs
Many thanks for considering my question.
I have been tracking the temperatures with a digital thermometer and Ipod weather date stamp.
I am not sure that I can upload a graph (I tried), but if you graph these values you will see that there was an event on the 28th June (when the studio opened) and since then the temperature is rising at a very even rate without any correlation to the weather.
The studio is remarkably hotter, if our members are anything to go by, and more than a few will put pen to paper to witness the rise in heat and upheaval caused by the construction and fit out.
We arehaving heat at the moment and we had heat the first two weeks of June.
But Idon't think that in the period from 26 June until about 4 July the ambienttemperature rose inordinately.
Fromthe table, I honestly don't think you've got enough figures to convince a court..yet.
Itwould be necessary (the table is not particularly easy to follow) to chart theambient air temperature from the Met office weather site over the last monthand then Interpolate the ambient temperature in the studio, along with thedates that the Yoga business has been working.
Ofcourse, in winter, this will be a bonus, but unfortunately, in summer it is aburden.
Youneed to wait until the outside temperature drops (which, knowing Great Britain,will not be long!) and then see if the temperature in the studio drops.
Assumingthat you do come up with a table that would be sufficient to convince a courtthat this rise in temperature to a completely (in my opinion) unacceptablelevel is attributable to the other business, then you can seek an injunction tostop them doing this and for compensation for any lost business (very difficultto quantify).
Yourclaim against the other business is in common law Private nuisance and possiblebreach of the terms of their lease, which presumably says that they've not gotto cause any problems or be of any annoyance to other users in the building.
Youcan also do the same against the landlord because he is allowing it to happen.
Thereis no legal reason why you cannot do this yourself. However, there is no reasonwhy you cannot take your own appendix out. This is something however, which isgoing to be better dealt with by a solicitor. Before going to see a solicitor.You need to make sure that you have all your evidence in place. I would alsoget an environmental type expert to look at the figures that you have regard tothe dates and the temperatures and to visit the building, and to give anopinion on where this heat is coming from.
Don'tget me wrong, I am of the same opinion as you are, that this heat was becomingvia upstairs and perhaps it is actually heating the bricks of the building up,and that is then being transmitted to your premises. The expert needs to puttemperature probes onto the walls and ceiling to see if the heat is beingtransmitted that way.
Ultimately,somebody could use a thermal imaging camera, which would show the extraordinary heat coming from this building (and from your part of that building)compared to other buildings in the vicinity.
Ratherthan face court and the application for an injunction and costs, the landlordmay be agreeable to let you terminate the lease but that may not be a viableoption depending on the availability of the premises and depending on the costof moving. One thing about moving is that unlike a court application, providedthe landlord consents, it is risk-free. There is always a risk if you go tocourt and you could face substantial legal costs if for any reason you lose.
Doesthat answer the question? Can I help further? Can I answer any specific points?
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I amoff-line shortly but will pick this up later because I am on and off-line eachday and weekend so please bear with me.
"What is the realistic case for damages and how much could we claim in the county court for derogation from grant, breach of covenant for quiet enjoyment and constructive eviction?" (The original question.) I am clear that I would need an expert testimony to justify the heat source, and the possible methods to get this, I am being advised by a surveyor. You appear to be advising that I would do best to go along with the landlord's constructive eviction? As you rightly anticipated the costs of moving, storage (because inevitably we will not be able to find new premises overnight) as well the £100k that we have sunk into this, the facts that we have no other source of income and are less than 3 substantially interfered with years into a 10 year lease, which has now gone rancid, all point to that being a seriously damaging position to have to resort to. This is why I am seeking an answer to my original question.I also attach a graphwhich I believe is self-evidentiary in describing the substantial interference.
Thereis nothing attached but I accept that you have evidence how this is caused.
I don'tthink this could be constructive eviction quite simply because you haveproduced no evidence (to me at any rate) that the landlord wants you stop.
Youmay have no alternative but to move it only becomes constructive if thelandlord is engineering your move. The end result is the same. The reason isdifferent.
Thecost of damages would be the amount right acquired you back the position hadthis problem not occurred. You are not supposed to come out of it with awindfall so there would be the cost of moving, storage, lost business etc. Youare going to need a forensic accountant to put together a schedule of loss. Youcan add something in for discomfort and inconvenience.
Thedifficulty you have proving loss is that you have (it would appear) no historictrading figures to rely on unless you have traded somewhere else.
Checkyour business insurance to see if you have legal expense cover would cover thecost of litigation because this claim would not be risk-free and it would notbe cheap if you lost for any reason.
Can Ianswer any further specific questions?