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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, I was in a commercial lease, which gave me the option

Customer Question

Hi,

I was in a commercial lease, which gave me the option of breaking after 3 years. I contracted a solicitor when the break period was approaching and she issued a letter on my behalf with my intention to break. The landlord however claims he never received the letter, (though the solicitors had proof of postage) and thus do not recognise that my lease was terminated. I moved irrespective and they have taken legal action against me. Unfortunately I cannot employ the services of a legal expect because I cannot afford it now so I need to defend myself. Any advice on what I need to do?...
Also another point worth mentioning is, before I signed the lease, there was an asbestos assessment done, and asbestos was found in the premises, so my solicitor put in the lease that the landlord was to fix the asbestos, something he never did. Is this something I can use against him in my defence?
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask which month and year roughly you engaged the solicitor and precisely what you asked her to do for you?

Customer: She was engaged around October of 2008 as the solicitor that handled the lease for me in which she insisted for the asbestos assessment to be done. She was the one who also wrote to the letter informing the landlord that I was excercising my right to break in yr 3 and she did it within the agreed timescale given in the lease
Joshua :

Sorry for the delay in reverting to you - I had to step into a meeting. Thanks for the above. Could you confirm approximately when you asked her to serve a break notice for you and that you instructed her to assist you with serving a valid break notice

Customer: I can't remember the exact time but I do know with all certainty that it was within the time frame as she contacted me before the deadline to enquire as to whether I wanted to stay on or break. And yes I instructed her to serve the notice
Customer: I believe the lease was signed Apr 09 and the break notice was issued in Oct 12 . I instructed the solicitors to serve notice and paid for the service.... Any advice in the issue of the asbestos???
Joshua :

Thanks. There is something known as deemed service which provides that providing you can show that a letter was properly addressed and was posted that it is deemed served whether or not it was received under Section 7 of the Interpretation Act 1978. However this was called into question by a significant case of Calladine-Smith v Saveorder Ltd where the court decided that that although it agreed that under under s7 if the sender of a letter can prove it has been put in a properly addressed, pre-paid envelope and then posted, the letter is deemed served, if the service of the letter must occur on or before a certain date (as presumably the case here) if there is proof the letter was delivered late or was not delivered at all that this will overturn the presumption of deemed service. It is unclear as to whether the recipient simply claiming that he had not received the notice would be sufficient to rebut the deemed service as to my knowledge this has not been tested yet by the courts.

Joshua :

The question however that initially arises is that your solicitor should have been aware of the above case which occurred in 2011 and the importance of ensuring break notices are correctly served. Current practice is that such notices should be sent using a trackable form of postage so that deliver can be shown so as to not to have to rely on deemed service as a consequence of its uncertainty following the above. If she failed to do so and/ot failed to follow up the notice to ensure it had been received there may be grounds for a complaint and ultimately compensation if you asked her to ensure that the lease was broken under the break clause

Joshua :

Initially you may wish to consider raising the issue with the solicitor as an informal complaint and if you are not satisfied with her response to escalate to a formal complaint and ultimately consider a complaint to the Legal Ombudsman who can where appropriate award compensation. They or a third party apppointed by the solicitors if negligence is found may elect to act for you with regard to negotiating out of the lease if notice was improperly served without cost.

Joshua :

If there is no negligence on the part of the solicitor then initially you can consider arguing deemed service of the break notice as above and failing which that the landlord should seek to mitigte his losses by installing a new tenant in the premises and / or assisting with this however notwithstanding suggesting that a new tenant is found to the landlord asap, you may wish to examine the possible negligence of the solicitor in question.

Joshua :

Is there anything above I can clarify for you any further?

Joshua :

Thanks. On the basis that the basement is not already demised to a third party under an existing lease (in which case the rules are a little different) you have been using the basement exclusively and no-one else has had access for a period of 12 years or more you may have a case for adversely possessing the basement. If you are successful in claiming adverse possession of the basement on the above grounds - you will likely need a solicitor to assist you with a adverse possession claim - the basement will be added to your demise and will be subject to the same terms as the lease - as provided for by Smirke v Lyndale Developments Ltd.

Joshua :

My apologies please disregard the last post above - I have posted to the wrong thread. My apologies. Is there anything else I can help you with on the above?

Customer: Thanks that was helpful...,, how abt the issue of the asbestos? You didn't say anything about it
Joshua :

There is a requirement on the part of the landlord to undertake such works as required of him in the Lease. If he has failed to do so you can require him to do so by seeking a court order and/or consdier carrying out the work yourself and charging him the cost (obviously if you have moved out you will not wish to do this). Whether you can claim an money from him for his failure would depend upon whether you can show you have suffered any loss by his failure to carry out the work. If you can you may have a potential counter claim.

Joshua :

Loss could be for example if you were unable to use a certain part of the premises because of the asbestos or if the asbestos caused some reduction in amenity in the premises for some reason.

Joshua :

Is there anything else I can help you with?

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer: Sorry popped out for a bit ....
Customer: With the regards XXXXX XXXXX asbestos, if the landlord failed to fix the problem which was a condition in the lease, does that not compromise the lease???
Joshua :

Sorry for the delay in reverting to you. Would you like to continue?

Customer: Yes pls
Joshua :

Thanks. The failure of the landlord to comply with a condition does not invalidate the remainder of the lease...

Joshua :

Rather it gives rise to a) a right to force compliance on the landlords part and/or b) sue for compensation if you can show loss as a consequence.

Joshua :

If you can show loss, notwithstanding your potential claims re the solicitor, you may be able to frame a counterclaim to offset any damages the landlord claims from you.

Joshua :

Is there anything above I can clarify for you any further?

Customer: No thank you, XXXXX XXXXX this is enough for now. Thank you very much for your advice
Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer: ok will do
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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