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Lisa C
Lisa C, Property Solicitor
Category: Property Law
Satisfied Customers: 89
Experience:  UK qualified solicitor with 10+ years experience in property law
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My property is a share of freehold. If the Directors of the

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My property is a share of freehold. If the Directors of the Freehold company are stating that I am in breach of the lease over a specific clause but have not written to other property owners in the block with the same, is this deemed as unfair?

In addition, the Directors have ignored many of the other clauses that have been breached by other property owners and seem to just be singling me out over this one clause.

Could I state to them that they have a conscious intent to treat me unfairly?

Could I argue that it is unfair prejudice or abuse of power?

What can I do and where do I stand legally?

Hello, thank you for your question. I am not very clear what you mean by "share of freehold" - you refer later to being in "breach of the lease". Do you mean that you have the benefit of a lease of part of a wider freehold property (for example a lease of a residential flat within a block of flats)?A Landlord may take action for breach of the provisions of a lease by a tenant if it wishes. Assuming there is nothing specific to the contrary within the lease document, there is no general requirement on it to enforce or take action against other tenants. As a result, a Landlord may pursue tenant A for a breach of certain lease terms, but may choose not to pursue tenant B for breach of other provisions in their lease.The lease provisions may include a specific requirement for the Landlord to act reasonably. If so, a tenant could make a case that the actions of a Landlord in taking action in respect of a minor breach, or exercising its right to take action against some but not all tenants who are in breach, is being unreasonable. The requirement to act reasonably cannot be inferred, however, and unless expressly stated within the relevant lease provisions, the matter is entirely at the Landlord's discretion.I would suggest that specific legal advice is sought on the precise breach in question, with reference to the specific terms of your lease, as the matter will turn directly upon the exact wording used in the document that you signed.
Customer: replied 2 years ago.

Hi Lisa

Thanks for answering my question. To clarify, it is a residential flat within a block of flats where the leaseholders all purchased a share of the freehold.

I have looked through the lease and there isn't a clause about the Landlord acting reasonably.

The clause they are quoting from the lease states:

'Not to...make any alteration whatsoever in the plan or elevation (of the Demised Premises) either internally or externally...and not to make any addition temporary or otherwise to any part of the demised premises'.

The Landlord is made up of the Directors of the Freehold company who have requested that I remove my 'structure' from my garden which is actually a pergola. I also have fencing. I have argued that this is freestanding and a natural part of the garden, not an extension or a change to the plan or elevation. Other owners have sheds, fencing and furniture in their garden which are also temporary additions. I have been advised to state that the pergola is not a change to the plan or elevation and as this was originally raised in 2008 and left by the Freeholder, it was affirmed due to the passage of time.

Are you saying that the Directors can do whatever they choose, pick on one person because they don't like you and turn a blind eye to everyone else and there is nothing and no law that protects you?

Thank you for your reply.
As you are aware, I can't give you legal advice on your particular situation, not least as, to do so, a solicitor would need to review all of the provisions of the lease document (and not just small extracts). Leases usually contain standalone provisions elsewhere in the document that interpret how many or all of the other provisions are to be interpreted, and it is therefore not prudent to try to give specific advice based on a single clause in isolation.
Hopefully the following advice will assist you though.
An obligation in a Lease "not to make any alterations whatsoever" is an 'absolute' obligation. There is very little defence available for a Tenant who breaches an absolute obligation without the Landlord's prior consent.
As previously stated, in the absence of anything to the contrary in a Lease document, once a breach has been identified a Landlord may choose to object or not (although, depending on the precise terms of the Lease, a Landlord who ignores a particular breach for a lengthy period may encounter some difficulties if it later decides to take action).
Although there is no requirement on a Landlord to act reasonably (unless expressly stated in the lease document), it is unlikely that a Landlord would choose to take action against a Tenant who is in breach "because they don't like" that Tenant, as you suggest. In practice, whether a Landlord chooses to object to a breach most commonly depends upon how it perceives the nature of the breach in question and the extent of that breach. It may, for example, choose to ignore what it considers to be a relatively minor breach by Tenant A, but choose to take further action in respect of what it perceives to be a more substantial breach by Tenant B. (Once again, unless the lease expressly states to the contrary, what is 'minor' is entirely at the discretion of the Landlord.)
Fundamentally, however, a lease between a Landlord and Tenant is a standalone contractual agreement between those two parties. As such, a Tenant is unlikely to have any valid defence to a breach of its lease terms by identifying other breaches by neighbouring tenants, particularly if the precise nature and extent of such breaches was not identical.
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