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In our lease (freehold property) there's a provision that floors need to be carpeted. However, for many years flats (at least 15 out of 72) have been replacing their carpets with wooden floors, without written consent by the landlord, including some directors of the Freehold Company (Landlord). We discussed the issue with the management company and they told us that the Landlord has allowed this as the flats are amenable to wooden flooring, though never put this in writing given the covenant in the lease. We changed our carpets with wooden floors ourselves but now the Landlord is starting a lawsuit against us for breaching the lease which may result in forfeiture of the lease. We are a bit shocked by this as they took this decision while other directors of the Landlord are enjoying wooden floors themselves (without having a written consent for that). we were also let to believe that the management company allows that. We had for example written to the management company that we intend to replace the carpet with wooden floors and received no response for 6 weeks. They then wrote to us saying we need to meet to review the works and to "regularise the matter". When we met they said again that despite the covenant in the lease "I'm sure we can sort it out given so many others have them for many years". About 6 months later they have now hired a lawyer who said if we don't admit that we have breached the lease they'll take us to court and our lease may be forfeited. We won't agree to this as we were misled to believe that this is allowed. Given the overwhelming evidence that this is the case for many years, at least 3 board members have them, and board meetings regularly take place in flats with wooden floors, we never suspected that this permission is not genuine and that in due course it will be regularised. Now we have been singled out and sued. My question is how strong is our defence as it's their word against our word and the evidence that others have wooden floors and peacefully enjoying them? Even if we don't have it in writing wouldn't verbal agreement be as strong as written given the evidence around? And finally, if they pursue us in court, can we start a derivative suit ourselves as we are being treated unequally to other leaseholders, especially directors of the company, who have not being asked to replace their wooden floors with a carpet. Isn't that in breach of directors obligations under the Company Act to treat shareholders/members of the company fairly and equally?
I will continue to wait. Thanks