Help with understanding Lease

Cocoko

Hi all,

Thank you so much for taking the time to read this. I am new and I have been searching here and elsewhere to try to get my query responded to, but have so far been unable to find the answers.

I own the lease on my ground floor flat. It is a long lease of 155 years (peppercorn ground rent), which was extended by the previous vendor when I bought in 2016. The property is a converted house with my flat on the ground and! first floor flat above. There are no communal areas and we each have a private garden and own front door.

I have had reason to look through my lease recently to understand repair responsibilities, and have been quite surprised what I have read. I wanted to check this out with you guys to try and understand what it means, as I have reason to believe that the whole structure is demised to me and the other lessee, including the foundations and garden and that we have joint (50/50 split) responsibility to repair. As there is also a management company involved charging service charges of £500 pa (of which most are 'management fees' and doing guttering, which is stated to be my obligation in the lease) and as a separate charge of building insurance of £500pa (which is the FH responsibility in the lease so that's understood). I want to know that if these repairs are my obligation, that I can get on and do them without any consent and also that the management company can't charge me for things that are my obligation.

The lease states that I need to get written consent for alterations and additions to the property.

The demised premises as stated in the first schedule are: "All that flat situate at XXX aforesaid and being on the ground floor of the building and the lower half part in depth of the structure between the ceiling of the flat and the floor of the adjoining flat and the internal and external walls and main structure of the flat above / below the same level and including the foundations together with the garden shown xxx"

It says that the "tenant covenants to keep the demised premises and all sewers, drains, pipes, cables, wires and appurtenances in good and tenantable repair and condition and the demised premises properly decorated both internally and externally and in particular (but without prejudice to the generality of the forgoing) so as to support shelter and protect other parts of the building.

There is then a clause basically saying that the Landlord can enter the demise by appointment and inspect the condition and can then demand the tenant carry out a repair if required.

There are then clauses that state subject to 50/50 split with upstairs, tenant covenant to keep in good and substantial repair of the following items: main structure, including foundations and roof, joists and beams, gutters and drain pipes, fences, boundary walls, footpaths

So I am reading from this that I have sole responsibility for my flat as demised and then joint with upstairs for everything else? Does this mean we can crack on with these as per our obligation as they are not alterations no consent is required?

In the Landlord's covenants it says if the lease upstairs is not granted he shall he be jointly responsible for the above but if there is a lessee they are instead.

It says if there are any disputes as to which lessee should carry out repairs this will be referred to a surveyor.

So - can anyone shine any light on this for me please?

Massive thanks in advance

eddddy

It sounds like an unusual lease.

If your interpretation is correct, there's very little for a management company to do (maybe just arrange insurance), so their £500 fee seems a bit unreasonable.

BTW, does the lease definitely say that the freeholder is responsible for insuring?

Perhaps your biggest problem will be getting 50% of the cost of work from your neighbour. Maybe insist that they pay their 50% before you get the work done.


In your position, I'd send a letter to the freeholder/management co telling them what you plan to do (as opposed to asking for consent), to give them the opportunity to dispute your understanding of the lease.

G_M

Do you get on with the leaseholder above? Have you yet baked a cake and had them round to tea?



Why not take over the mangement yourselves? Right To Manage.

Cocoko

Hi, thanks for your replies.

Yes the lease definitely says that the FH is responsible for arranging insurance.

I will look into Right to Manage - the management company only arrange insurance as far as I am aware and then arranging for the gutter clearance but actually that is under my obligation so I am wondering how they are able to do this and indeed any other repairs to be charged back if this is all under my obligation in the lease?

I have been over the lease several times as yes it is unusual, so thank you for the advice of writing to them also.

If anyone has any other comments I'd be grateful to hear them.

Many thanks

eddddy

Yes - as you suggest... if the freeholder (or management co) is charging you doing something that the lease says is not their responsibility (clearing gutters), a tribunal would probably rule that you don't have to pay them for it.

I would also challenge the £500pa fee as being unreasonable, if all they are required to do is arrange insurance.

Tom99

Cocoko wrote: »

The demised premises as stated in the first schedule are: "All that flat situate at XXX aforesaid and being on the ground floor of the building and the lower half part in depth of the structure between the ceiling of the flat and the floor of the adjoining flat and the internal and external walls and main structure of the flat above / below the same level and including the foundations together with the garden shown"

That is certainly a very unusual clause with some ambiguity, but I think you may be misinterpreting it. I think what is demised to you is everything below the level of halfway between you ceiling and the floor of the flat above you.
Ie the building has been sliced in half horizontally, like two half's of a cake with the jam filling being your ceiling.

There is no mention of roof and I bet the upstairs flat demises to them everything above this plane in the middle of the ceiling including the roof.

Therefore if the building needs underpinning its all down to you and if the roof or gutters need fixing its all down to upstairs.

Cocoko

It does seem unusual because that is what it says in the demise, and another clause tells me I am responsible for all repairs in my demise.

However in addition, another clause states we are both jointly responsible subject to 50/50 split for following items comprised or not comprised within my demise then lists everything I described above...

Tom99

Cocoko wrote: »

It does seem unusual because that is what it says in the demise, and another clause tells me I am responsible for all repairs in my demise.

However in addition, another clause states we are both jointly responsible subject to 50/50 split for following items comprised or not comprised within my demise then lists everything I described above...

Are you able to quote exactly additional what this clause says and the list it refers to?

Cocoko

Yes I am thank you:

The demised premises as stated in the first schedule are:

"All that flat situate at XXX aforesaid and being on the ground floor of the building and the lower half part in depth of the structure between the ceiling of the flat and the floor of the adjoining flat and the internal and external walls and main structure of the flat above / below the same level and including the foundations together with the garden shown xxx"

It says that the:

"tenant covenants to keep the demised premises and all sewers, drains, pipes, cables, wires and appurtenances in good and tenantable repair and condition and the demised premises properly decorated both internally and externally and in particular (but without prejudice to the generality of the forgoing) so as to support shelter and protect other parts of the building."

There is then a clause basically saying that the Landlord can enter the demise by appointment and inspect the condition and can then demand the tenant carry out a repair if required.

There are then clauses that state subject to 50/50 split with upstairs, tenant covenant to keep in good and substantial repair of the following items: main structure, including foundations and roof, joists and beams, gutters and drain pipes, fences, boundary walls, footpaths stating word for word:

"subject to an equal one-half contribution by the landlord (if possession of the adjoining flat is retained by the landlord) or by the lessee or owner of the adjoining flat of the cost to keep in good and substantial repair and decoration such of the following items as are comprised in the demised premises or are not comprised in the demised premises but are used in common with the lessee or owner of the adjoining flat:
(i) the main structure of the building including the foundations of the roof thereof and the main walls and the beams and timbers of the building (including the roof timbers) and the joists or beams under or over (as case they may be) the ceilings and floors (including those under the floor of any internal staircase) of the demised premises and the adjoining flat
(ii) the gutters rain water and downpipes of the building
(iii) All such gas and water pipes drains and electric cables and wires doors windows and window frames upon the building as are enjoyed by the tenant in common with the lessee or owner of the adjoining flat.
(iv) footpaths
(v) boundary walls
Subject to a half contribution by the landlord (if possession of the adjoining flat is retained by the landlord) or by the lessee or owner of the adjoining flat to pay and contribute one half part of the cost of the repairs and decorations referred to in the clause above to such of the items referred to therein are not comprised in the demised premises or are used in common with the lessee or owner of the adjoining flat."[/B][/B]

There is nothing in the Landlord's covenants about his repair liability, it only makes reference to if the adjoining flat is in the Landlord's possession and not leased, he will undertake the repair responsibility to the adjoining flat.

And that he will basically ensure the adjoining flat has the same lease terms as me

Ensure the building is insured

And if there is any dispute as to which lessee should carry out works the matter will be referred to a surveyor whose decision shall be final (I interpret this to be dispute between the lesses).

I just need to know how to proceed and if the Management Company can charge me for anything as the service charges are due next month and they have done section 20 works in the past so can they legally do this? I also would like to do some repairs myself and want to know if I can just do them, because the FH likes to charge for consent.

Many thanks in advance

Tom99

[FONT=Verdana, sans-serif]Wow, that's some lease. I have never seen anything like it. This is what I think it says:[/FONT]

• [FONT=Verdana, sans-serif]Your demise is the bottom half of the cake, i.e. everything below the mid point of you ceiling including the foundations. The upper part of the structure are not demised to you nor is the roof.[/FONT]
• [FONT=Verdana, sans-serif]You are responsible for repairing the whole structure including the roof and anything that is shared with the upper flat even if, like the roof it is not in your demise, but the upper flat owner must give you 50% of the costs you incur.[/FONT]

[FONT=Verdana, sans-serif]OK very unusual but reasonable (sort of) clear, however the last clause says:[/FONT]

[FONT=Verdana, sans-serif]'Subject to a half contribution by the landlord (if possession of the adjoining flat is retained by the landlord) or by the lessee or owner of the adjoining flat to pay and contribute one half part of the cost of the repairs and decorations referred to in the clause above to such of the items referred to therein are not comprised in the demised premises or are used in common with the lessee or owner of the adjoining flat.'[/FONT]

[FONT=Verdana, sans-serif]This clause seems totally unnecessary and confusing to me. Subject to a half contribution by the upper flat You are to pay and contribute 50% of the costs of the repairs referred to above.[/FONT]

[FONT=Verdana, sans-serif]But the above clause makes you responsible for undertaking these repairs? So who are you meant to pay this money to and for what?[/FONT]

[FONT=Verdana, sans-serif]Read literally that clause say you pay 50% for something but subject to a half contribution from the upstairs flat.[/FONT]
[FONT=Verdana, sans-serif]So you pay 50% less half = 25%[/FONT]
[FONT=Verdana, sans-serif]Clearly not what was intended but that is what the clause says.[/FONT]
[FONT=Verdana, sans-serif]
[/FONT][FONT=Verdana, sans-serif]There are also a further problems with the drafting of this lease, it makes you responsible for undertaking repairs to the upper part of the structure which in not in your demise. What would normal happen is that the freehold interest would hold the entire structure and and repair it.[/FONT]
[FONT=Verdana, sans-serif]Also you say the freeholder insures the building. But the freeholder does not own the structure so do they actual have an insurable interest?[/FONT]

[FONT=Verdana, sans-serif]I think what should happen is that the freehold is transferred to you subject to a lease created for the upper flat. You are already responsible for repairing the whole structure and there is nothing left for the freeholder to do. As you say the lease does not make them responsible for doing anything so how can they levy a service charge?[/FONT]

[FONT=Verdana, sans-serif]When you bought this flat you say the lease already existed.[/FONT]
[FONT=Verdana, sans-serif]Therefore it is likely the solicitor you employed produced a report on title for you consider before your purchase.[/FONT]
[FONT=Verdana, sans-serif]This often consist of a copy of the lease, the solicitors summary of its main clauses and also any comments about the lease, particularly if its terms are unusual or onerous.[/FONT]
[FONT=Verdana, sans-serif]Did you have a report of title and what did it say at the time?[/FONT]
[FONT=Verdana, sans-serif]
[/FONT]

Cocoko

Hi Tom
Thanks so much for sticking with me on this. I'm quite confused too.

I am going to look out the solictors report and get back to you but i know they did tell me the LL was responsible for the repairs which appears to be wrong advice.

This is the original lease but it has been stat extended by 90 years and peppercorn rent - this was done as part of the sale. Would that mage any difference?

I originally looked at the lease because I had a leak from my upstairs neighbour and i wanted to see about liability but he's paid me anyway for the damage so that's a side issue.

To be honest I'm quite happy if i am responsible for repairs, it means i can get on with it....i am concerned that section 20 notice was served in 2015, don't see how they can do this?

I've been searching online for the answers and struggled to find anything.

I may need to go back to my conveyancers!