Special Condition?

goodValue

It has been over two weeks now, and I haven't heard back about any breaches.

I'm very unhappy with the solicitor about this, as she keeps responding each time that it is a standard clause. It is obviously not a standard clause, as it is one of two Special Conditions (the other being a Covid rider).

I am worried because the consequencies (forfeiting the lease) can be so dire.

Is there any standard clause that is similar to this, and which it may have been adapted from?

davidmcn

goodValue said:

It has been over two weeks now, and I haven't heard back about any breaches.

Well, what does the lease say? What do you think might be breached (that is liable to lead to forfeiture and which your solicitor isn't otherwise checking anyway)?

goodValue

My last question was asking is this a reasonable clause to put in a contract.

My solicitor has evaded explaining it to me, and it appears the seller is avoiding answering if there are any breaches.

If the clause is similar to what is usually in a purchase contract, should I comply with it?

Or do these evasions mean that this is something I should pursue until I get a believable answer?

princeofpounds

Hi, I don't have the time to research this fully at the moment, but if you paste large sections of the clause into your favourite search engine, you will get a fair few results that appear to be related to this issue.

There is some discussion on this landlordzone thread from a few years back, for example (one of several that come up) - specifically post 7. I am assuming that this discussion is relevant to yours on a quick skim, but obviously I can't guarantee this.

https://forums.landlordzone.co.uk/forum/conveyancing-questions/70982-provisions-in-tr1-transfer

I hope the link below works - this is a google extract of a book on conveyancing that appears to discuss your wording exactly. Pg 221 (Section 7.52). Again, from a quick skim, this clause basically appears to put you in a caveat emptor position when it comes to buying the property, specifically with reference to the lease conditions, as you would be in a freehold property. Anyway, I think if you read around this you will get your answer.

https://books.google.co.uk/books?id=VQ9RDAAAQBAJ&pg=PA221&lpg=PA221&dq=seller+is+not+liable+for+any+subsisting+breach+of+a+condition+or+lessee's+obligation+relating+to+the+physical+state+of+the+property+which+renders+the+lease+liable+to+forfeiture&source=bl&ots=Hf34DpLxXU&sig=ACfU3U3bLqnZmqrSHL8Hcbn8czfbZFvwOQ&hl=en&sa=X&ved=2ahUKEwiwn-7y2qbvAhXWZxUIHS07A8YQ6AEwCHoECAkQAw#v=onepage&q=seller is not liable for any subsisting breach of a condition or lessee's obligation relating to the physical state of the property which renders the lease liable to forfeiture&f=false

You should of course press your lawyer to explain it properly. But there is a high likelihood they don't really know the precise legal reasoning behind the clause without applying some thought, which may account for their evasiveness. Conveyancing is 'lawyering by numbers' to a certain extent and many standard (or even 'standard special') clauses are not given much thought.

davidmcn

Like I said above, the first questions are what does the lease say and what might have been breached? That's more important than figuring out whether you'd have the right to, in turn, claim anything from the vendor if the freeholder took action against you.

goodValue

princeofpounds said:

Hi, I don't have the time to research....

Many thanks for your efforts in finding this information, it has proved very useful.

It is reassuring, to some extent, that it IS a common clause, however, it is still concerning that I could be severely disadvantaged for some other persons' wrongdoing.

goodValue

davidmcn said:

Like I said above, the first questions are what does the lease say and what might have been breached? That's more important than figuring out whether you'd have the right to, in turn, claim anything from the vendor if the freeholder took action against you.

I had tried looking at the lease, but lack of experience/skills in interpreting legal documents, and covenants spread over a number of sections of the lease, meant that I could never be sure of finding all relevant issues.

Now, I'm thinking that this would only be speculation on what the seller may have/have not done -

what benefit is to be gained by this.

The penalty is so great (loss of lease) that I think it necessary to investigate what I can do to protect myself from the loss, including gaining recompense from the seller.

chalky_white_2

It is a standard contractual clause in for leasehold transactions, required by a Seller to remove a warranty implied by statute that the 'lease' is not in breach.   It is considered fair and reasonable due to the fact that the Buyer can fully inspect the physical condition of the Property and determine if the physical condition has breached a clause of the written lease which they can also review.   Any potential breaches noted can be investigated (and resolved) accordingly.   Caveat emptor.