Help with understanding Lease

Iguana

Try contacting Leasehold Advisory Service and the Leasehold Knowledge Partnership.

Tom99

[FONT=Verdana, sans-serif]If my interpretation of your lease is correct, which it may not be, then it would be similar to buying a house, but the title to this house made you responsible for repairing your neighbours roof, even though you don't have any legal interest in that house next door.[/FONT]
[FONT=Verdana, sans-serif]My experience of conveyancers is that some are not very good at interpreting detailed lease clauses.[/FONT]
[FONT=Verdana, sans-serif]My daughter recently bought a flat and it was obvious her conveyancer did not understand the lease.[/FONT]
[FONT=Verdana, sans-serif]So, if you are paying for this advice, you may want to consider using a different solicitor, since if yours has badly advised you they are hardly going to own up to that.[/FONT][FONT=Verdana, sans-serif]
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Cocoko

Hi Tom

I am definitely not going to pay them for any advice just see what they have to say. I don't think they did understand it at the time because they told me the LL is responsible for repairs!

They state in their report and I quote:

We have raised certain enquiries with the Sellers’ Solicitors. As soon as we have their replies we will be in touch again.
Please ensure that you also re-read the About Buying a Leasehold Property Information Form to refresh your memory about all the important information contained.
Under the terms of the Lease the Landlord is responsible for repairing, maintaining and insuring the building subject to service charge contributions from all the tenants.
Therefore on completion you will only be required to effect a contents insurance policy.Under the Lease the 4th Schedule sets out the regulations of what you can and cannot do at the Property. Please read these regulations carefully.Pets are allowed but if they cause a nuisance then the Landlord can ask you not to keep the animal any longer.
You can sublet the whole (not part) of the property, but will need to serve notice on the Landlord or Management Company within 1 month of the start of the subletting. It is likely that an administration fee will be payable.
No alterations of a structural or non-structural nature are allowed to the Property without the consent of the Landlord but this will be in addition to Planning Permission and Building Regulation Approval if required.

All they state appears to be correct APART from the repair liability....

Tom99

Cocoko wrote: »

Hi Tom

I am definitely not going to pay them for any advice just see what they have to say. I don't think they did understand it at the time because they told me the LL is responsible for repairs!

They state in their report and I quote:

We have raised certain enquiries with the Sellers’ Solicitors. As soon as we have their replies we will be in touch again.
Please ensure that you also re-read the About Buying a Leasehold Property Information Form to refresh your memory about all the important information contained.
Under the terms of the Lease the Landlord is responsible for repairing, maintaining and insuring the building subject to service charge contributions from all the tenants.
Therefore on completion you will only be required to effect a contents insurance policy.Under the Lease the 4th Schedule sets out the regulations of what you can and cannot do at the Property. Please read these regulations carefully.Pets are allowed but if they cause a nuisance then the Landlord can ask you not to keep the animal any longer.
You can sublet the whole (not part) of the property, but will need to serve notice on the Landlord or Management Company within 1 month of the start of the subletting. It is likely that an administration fee will be payable.
No alterations of a structural or non-structural nature are allowed to the Property without the consent of the Landlord but this will be in addition to Planning Permission and Building Regulation Approval if required.

All they state appears to be correct APART from the repair liability....

OK since you are not going to pay them. Say you have read the lease and you don't think it says what they set out in their report. It seems its not just the who repairs there may have been wrong on and there are other matters they should have drawn to your attention:

- The bottom slice of the structure is within your demise incl the foundations.
- You are responsible for repairing the whole structure incl the roof even though it is not in your demise
- You have not quoted what any service charge says in the lease, I may have missed it if you said there was no service charge?

Obviously the above are only my comments, I would add that I am not an expert in property law and may well be wrong.

Cocoko

Hi Tom, no I completely appreciate that and really value your opinion.

I have emailed them drawing their attention to this and am awaiting a response. I have also sent the lease to the leasehold advisory service for comments.

I think that the responsibilities are joint e.g. I have joint responsibility for the roof but by the same token upstairs has for the foundations so it is 50% each of the structure.

I cannot see anything about service charges. In the LL covenant sections he has the following sections which I paraphrase:

- to allow me to quiet enjoyment of the premises
- to ensure the other lessee has the same terms as me
- enforce such covenants on the other lessee if necessary
- do repairs UNLESS there is another lessee
- insurance

There is nothing about the LL doing repairs and charging service charges. There is a section which states the tenant must pay all rates, taxes, assessments, charges, impositions and outgoings of the demised premises but I am assuming this means bills and council tax etc?

The only section I can't understand is the following and I quote:

Forthwith after service upon the Tenant of any notice affecting the demised premises served by any body or authority (other than the Landlord) to deliver a true copy thereof to the Landlord and if so required by t he Landlord to join with the Landlord in making such representation to any such person or authority concerning any proposals affecting the demised premises that Landlord may reasonably consider desirable and to join with the Landlord in any such appeal against any order or direction affecting the demised premises as the Landlord may reasonably consider desirable.

There is also another covenant that states that the tenant should allow the Landlord entry to inspect the condition of the premises and then the Landlord can serve a notice to the tenant to carry out repairs and if these are not carried out within a month then the LL can do them and recharge the tenant.

Currently we have:
A management company involved charging £500 pa for 'management fees' - but I have no idea what they are doing for this?
Peppercorn ground rent - I have not received any demands for ground rent
Building insurance - £500pa each flat.

I received a letter from the management company saying they were going to do a gutter clearance which has not happened yet, presumably this would be charged through service charges but I am not sure they can do this if we have such repair obligations? And as I said I want to get on and do some repairs without asking consent (which could cost money) but am worried about doing this also.

Tom99

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Cocoko wrote: »

I think that the responsibilities are joint e.g. I have joint responsibility for the roof but by the same token upstairs has for the foundations so it is 50% each of the structure.

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[FONT=Verdana, sans-serif]Joint as in upstairs pay half the cost but you are the one who has to actually carry out the repair with upstairs contributing half. But this has all sorts of problems if upstairs are unhelpful.[/FONT]
[FONT=Verdana, sans-serif]Just for example you have to enter onto premises you have no legal ownership of e.g. the roof and repair it.[/FONT]
[FONT=Verdana, sans-serif]Your upstairs neighbour can come to you with any complaint about a small leak etc knowing you will have to pay half.[/FONT]
[FONT=Verdana, sans-serif]Also other than this obligation for upstairs to pay half what option do you have if he won't pay up? You can't forfeit the lease because you are not his landlord, you can't even refer to the service charge if there was one in his lease again because you are not his landlord. At the moment I think you are saying this upstairs lease does not exist so its the freeholder you recover this half from but it comes with the same problems.[/FONT]
[FONT=Verdana, sans-serif]Say a major repair is required, re-roofing or something. There is no mechanism for you to collected a contribution up front before you expend £1,000's fixing the roof. You don't have a landlord/tenant relationship so you cannot rely on all of the legislation governing just this sort of work which is normally carried out by a freeholder.[/FONT]

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Cocoko wrote: »

- to allow me to quiet enjoyment of the premises
- to ensure the other lessee has the same terms as me
- enforce such covenants on the other lessee if necessary
- do repairs UNLESS there is another lessee
- insurance

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[FONT=Verdana, sans-serif]What exactly does that mean? You are to carry out repairs whilst there is no lease granted on the upstairs flat? What is to happen if there is another lessee, again presumably of the upstairs flat? Is the freeholder to then take over repairs or what? If he is, where is the obligation for him to repair and the service charge to collect from you?
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Cocoko wrote: »

There is nothing about the LL doing repairs and charging service charges. There is a section which states the tenant must pay all rates, taxes, assessments, charges, impositions and outgoings of the demised premises but I am assuming this means bills and council tax etc?

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[FONT=Verdana, sans-serif]The landlord can only collect a service charge if it is stipulated in the lease. You say there is none, so I think you should be demanding back all you have paid so far (after taking legal advice). In the meantime, you might want to put the management co / freeholder on notice that you have serious reservations about the way they are interpreting this lease and you are taking legal advice. You will be suspending all payment of service charge to them and you may be seeking to recover past service charges collected not in accordance with the lease.[/FONT]

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Cocoko wrote: »

The only section I can't understand is the following and I quote:
Forthwith after service upon the Tenant of any notice affecting the demised premises served by any body or authority (other than the Landlord) to deliver a true copy thereof to the Landlord and if so required by t he Landlord to join with the Landlord in making such representation to any such person or authority concerning any proposals affecting the demised premises that Landlord may reasonably consider desirable and to join with the Landlord in any such appeal against any order or direction affecting the demised premises as the Landlord may reasonably consider desirable.

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[FONT=Verdana, sans-serif]Don't worry about that, its a catch all usually found in leases. In the extreme say the LA serve a notice on you saying the are going to compulsory purchase your property.

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Cocoko wrote: »

[FONT=Verdana, sans-serif]There is also another covenant that states that the tenant should allow the Landlord entry to inspect the condition of the premises and then the Landlord can serve a notice to the tenant to carry out repairs and if these are not carried out within a month then the LL can do them and recharge the tenant.[/FONT]

[FONT=Verdana, sans-serif]Typical clause – don't worry

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Cocoko wrote: »

[FONT=Verdana, sans-serif]Currently we have: A management company involved charging £500 pa for 'management fees' - but I have no idea what they are doing for this?
Peppercorn ground rent - I have not received any demands for ground rent
Building insurance - £500pa each flat.

I received a letter from the management company saying they were going to do a gutter clearance which has not happened yet, presumably this would be charged through service charges but I am not sure they can do this if we have such repair obligations? And as I said I want to get on and do some repairs without asking consent (which could cost money) but am worried about doing this also.[/FONT]

[FONT=Verdana, sans-serif]Point out to this management company that there is no service charge provision in your lease so you won't be paying for anything and that they should refer back to the freeholder re any payment they want. Also that they appear to have been collecting £500pa management fee from you which they have no right to collect under the lease and therefore you want your money back.[/FONT]

[FONT=Verdana, sans-serif]I would be extremely surprised if a solicitor prepared this lease. It looks like the freeholder (did he create the flats?) took a copy of a lease he found and started playing around with it on his laptop, thinking he would save himself some money on legal fees.
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Cocoko

Hi Tom, once again thank you so much for your advice and opinion, really helpful.

There IS a leaseholder upstairs and as it states in my lease he will have the same terms as me so therefore we are jointly responsible for the repairs and have to pay half each. If he has the same terms then HE also has to carry out repairs.

In terms of collecting half of the repair cost, I would assume this is where the management co / freeholder would come in as they would enforce the terms of the lease on him should he not pay. Which I would be fine with them doing.

The management co are definitely not aware of what is in my lease as if they were they should arranging repairs.

Once I am clear on this lease, I will be informing them of my understanding and of some of the repairs I will be carrying out, and I will take advice from them in terms of billing upstairs. I am happy to get on with repairs, in fact I want to because it will be cheaper for me, I just don't want to do something I am not supposed to.

I read that if there is no Lessee upstairs (which there is at the moment) then the FH would take over the repair obligations as if he were the lessee i.e. 50% split with me for the building until a lessee was in place who would take this from him. There is nothing about service charges.

I am definitely taking legal advice and then going back to the FH and management co and thank you for that advice. I am going to review all past documents for them as I think during my time (I have had the lease since 2016) they have only charged 'management fees' and buildings insurance which they would be entitled to do but they definitely think they are entitled to charge service charges as they have in the past when doing repairs.

Would the management fees also not be able to be collected? Could these be included in the "all rates, taxes, assessments, charges, impositions and outgoings of the demised premises"?


The freeholder is a solicitor as I understand it! Also the lease was written by a solicitor as it has their details on. As the FH is a solicitor I am worried to challenge anything.....however I will once things are confirmed by my conveyancer / leasehold advisory service.

Does it make any difference that the lease has been extended?

This is a converted house of 2 flats and is not the original FH by the looks.

Tom99

[FONT=Verdana, sans-serif]You say that a lease exists for the upper flat? If so you really need to get a copy of it.[/FONT]

Cocoko wrote: »

[FONT=Verdana, sans-serif]There IS a leaseholder upstairs and as it states in my lease he will have the same terms as me so therefore we are jointly responsible for the repairs and have to pay half each. If he has the same terms then HE also has to carry out repairs.[/FONT]

[FONT=Verdana, sans-serif]Only one party is every responsible for undertaking the repairs, ie actually doing the work. You would never find that two parties were jointly responsible for undertaking the work.[/FONT]
[FONT=Verdana, sans-serif]Your lease makes you the party who undertakes say roof repair and the upper floor tenant has to give you half your costs.[/FONT]
[FONT=Verdana, sans-serif]So you can say you are jointly responsible for the cost of the work if you like but that's only half the story.[/FONT]
[FONT=Verdana, sans-serif]His lease cannot be a mirror of yours, if you are responsible for undertaking the repair of the roof then he cannot also be responsible for undertaking repairs to the roof, only for paying you half.[/FONT]
[FONT=Verdana, sans-serif]This is why you need a copy of that lease.[/FONT]

Cocoko wrote: »

[FONT=Verdana, sans-serif]Would the management fees also not be able to be collected? Could these be included in the "all rates, taxes, assessments, charges, impositions and outgoings of the demised premises"?[/FONT]

[FONT=Verdana, sans-serif]No that clause won't allow them to collect a management fee or service charge.[/FONT]

Cocoko

Thank you for your ongoing advice Tom...
In that case there is no clause for service charges or management fees. It sounds like if I am soley responsible for undertaking repairs then I should be paid a management fee! I wish I could copy and paste the whole lease to be honest but it is from 1986 so typewritten and would need to be manually typed out.
Pertinent points from the lease I pick out regards your last points are as follows:
"It is intended to demise the flat not hereby demised (hereinafter called "the adjoining flat" as described in the particulars annexed hereto) upon terms similar in all respects to those contained herein to the intent that any lessee for the time being of either flat may be able to enforce the observance of the terms by the owners and occupiers for the time being of the other flat."

Also in the LL's covenants:

"That the Landlord will require every person to whom he shall hereafter transfer or grant a lease of the adjoining flat to covenant with the tenant in the same or similar terms as those of Clause 3 hereof (Clause 3 is tenants covenants - includes repair liabilities)"

And also that:

"That (if so required by the Tenant) the Landlord will enforce the covenants similar to those contained in Clause 3 hereof entered into by the transferee or tenant of the adjoining flat on the Tenant's indemnifying the Landlord against all costs and expenses in respect of such enforcement and providing such security in respect of costs and expenses as the Landlord may reasonably require"

And then just the insurance and that he will pay repair costs unless a lessee is upstairs which there is currently.

I feel like I am missing something - there has been a lease extension, but assuming the terms will be the same. They must think they can charge me management fees if they are??

Tom99

[FONT=Verdana, sans-serif]Sounds like an absolute pig of a lease. It is so unusual I am surprised your solicitor was not waving a bunch of red flags at you. If you try to sell this lease you will have to hope the buyers solicitor is pretty laid back.[/FONT]
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Cocoko wrote: »

In that case there is no clause for service charges or management fees. It sounds like if I am solely responsible for undertaking repairs then I should be paid a management fee! I wish I could copy and paste the whole lease to be honest but it is from 1986 so typewritten and would need to be manually typed out.

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[FONT=Verdana, sans-serif]No you can only recover what your lease says you can recover, no more, so half your expenditure on the structural and external repairs. Even then you have no direct contract with the other leaseholder, if he chooses not to pay up you are totally reliant on the freeholder trying to recover the costs for you – very unsatisfactory.[/FONT]
[FONT=Verdana, sans-serif]If you have a scanner then a scanned copy of this lease will be useful to you, you can then email it to another solicitor if you appoint one.[/FONT]
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Cocoko wrote: »

"It is intended to demise the flat not hereby demised (hereinafter called "the adjoining flat" as described in the particulars annexed hereto) upon terms similar in all respects to those contained herein to the intent that any lessee for the time being of either flat may be able to enforce the observance of the terms by the owners and occupiers for the time being of the other flat."

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[FONT=Verdana, sans-serif]That's an almost worthless statement. What does similar mean? it could mean anything. You are responsible for undertaking all the repairs so the upper floor lease cannot possibly make them also responsible for repairing the property. Also your lease gives you some sort of right to recover half the costs whereas the upper floor lease should make them responsible for paying you half the costs. Ie exactly the opposite, so not similar at all.[/FONT]
[FONT=Verdana, sans-serif]This is why you need a copy of the upper floor lease. Can you get one? Maybe from the Land Reg[/FONT]
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Cocoko wrote: »

I feel like I am missing something - there has been a lease extension, but assuming the terms will be the same. They must think they can charge me management fees if they are??

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[FONT=Verdana, sans-serif]As well as the original 1986 lease you should also have the lease extension deed? Normally this would be a very short deed of a few pages which just say old term replace by new term and old rent replaced by a peppercorn, plus some minor standard changes I think. But it could have also changed anything in the original lease. So do you have a copy? [/FONT]