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.
May I ask which month and year roughly you engaged the solicitor and precisely what you asked her to do for you?
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
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.
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
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.
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.
Is there anything above I can clarify for you any further?
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.
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?
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.
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.
Is there anything else I can help you with?
Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?
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.
Sorry for the delay in reverting to you. Would you like to continue?
Thanks. The failure of the landlord to comply with a condition does not invalidate the remainder of the lease...
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.
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.
A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.