CCTV being used in communal areas and threatened with court action

ThisIsWeird

abcan said:

Hello and thanks in advance for any advice.
I live in a leasehold flat which has a large communal deck. All the flats (maisonettes) open onto the deck and the whole thing is built on top of a market hall.
lots of the residents have kids (younger ages 1-9) and when the weather is good there can be groups of maybe 4-8 children playing outside, parents are always closely supervising the children (there is a sex offender living in the complex)
The kids play from 4-7 pm at the latest. Not every day or every weekend but maybe 1/4 nights. We have estate rules from the landlord which say things like we can’t have pets (there are) we can’t hang out washing (there is) and one rule is children can’t play in the communal area. (We are inner city our closest green space is about 10 min walk) so the majority of us still let the kids play. 

A resident today witnessed the caretaker of the building using his phone to take pictures of the kids playing and another also saw him photograph the cctv screen. The caretaker told a resident that the building manager is going to take the residents to court who are letting their kids play. I didn’t know they are filming the deck- I’m not sure they are allowed to do that with GDPR nor take photos. I’m happy enough to wait for the court letter as I believe my household insurance legal cover would support me in arguing that since they are only choosing to enforce one of the rules they are discriminating against the children.- why not go after the washing people or pet owners? 
But what about the cctv of the children? And the photos being taken and stored? Is this legal? What can I  do about this?
I will also add we each pay £2400 service charge and £300 ground rent every year and we all feel justified in using the deck considering we pay so much for it. We also look after the communal area and our elderly neighbours. It’s a lovely community.    

I suspect it may be as eddddy says - why only this issue amongst all the breaches? Very likely because a leaseholder with no kids and who wants complete peace and quiet has made a complaint.

I also fear that this could pan out as eddddy suggests. I mean, why shouldn't it? It would appear on the surface to be pretty black and white - tho' potentially slightly grey.

What to do? Nothing that 'will' work as far as I can see, so that leaves negotiation and emotional pressure. The parents involved try and explain how important this communal playtime is to the emotional health of all concerned, how it bolsters the community spirit, how it makes them all feel more inclined to support each other and keep the block friendly, clean and secure. And see if there is some compromise that can be arrived at - I'd hate to use the term curfew, but that could be it in essence. Ie, an agreed timescale for playtime.

And, if the response is negative, consider employing the bigger guns - involving local press and television, who would surely be dismayed by such a restriction on joyful behaviour.

What would the LL prefer - to end up with a bunch of closed-door curtain-twitchers - or seemingly worse - in their block instead?

What other rules cover that decked area? Are adults allowed to gather there?! Are you allowed to stop and chat? More than - gasp - two sets of adults at one time? And if they have their children with them, are the kids expected to not engage? "You two stop playing - right now!" It seems as tho' it could also be a bit of a grey area, if adults are expected to be able to stop and chat, even sit down and ditto, but any children in attendance cannot - that seems nuts. But I've no idea, or whether that could be 'used' against the covenant.

When you say the adults are in supervision, are they physically present on the same decking? If so, that would suggest that adults are allowed to socialise, but children aren't! Perhaps it's time for the adults to start skipping around and playing tag and ball games too?

Out of curiosity, you say the caretaker was seen taking photos of the CCTV screen? Is the screen visible to residents, then? 

spoovy

Could it not be an insurance issue for the freeholder? Children's play areas generally have to have all sorts of measures such as rubberised flooring etc. If so they might not have any option but to take action.

TripleH

It may sound daft, but is the caretaker looking to scare you into stopping children playing in the communal area?

Deliberately get seen taking pictures, state it is for the freeholder to take you to court?

I may be wrong here, but a little knowledge and a lot of naivety can be a good tactic, plus it makes his life easier.

The freeholder might not be bothered / views it as too much effort.

justwhat

What about the House holders that don't want kids running around/playing in the communal area?

Have they just too put up with it? Maybe they moved to the property because it had that rule?

Section62

abcan said:

I live in a leasehold flat which has a large communal deck. All the flats (maisonettes) open onto the deck and the whole thing is built on top of a market hall.

...and one rule is children can’t play in the communal area. (We are inner city our closest green space is about 10 min walk) so the majority of us still let the kids play.

...I’m happy enough to wait for the court letter as I believe my household insurance legal cover would support me in arguing that since they are only choosing to enforce one of the rules they are discriminating against the children.- why not go after the washing people or pet owners? 

Given this deck area is some height above ground level there could be good H&S reasons to restrict the kind of activities allowed on it.

How is the area enclosed?  Are there buildings all around it, or are parts open?  What kind of railings or barrier do any open parts have (e.g. how high)?

If it were possible for something thrown to go over the railing/barrier and fall on someone/something below then I don't think a court would find it unreasonable to have a restriction on how the area is used.

eddddy

Section62 said:

If it were possible for something thrown to go over the railing/barrier and fall on someone/something below then I don't think a court would find it unreasonable to have a restriction on how the area is used.

A breach of lease isn't based on what a court finds reasonable or unreasonable.  It's a straightforward contractual matter - based on the wording of the lease.

If the lease says (words to the effect of) you are not to permit children to play on the deck - then permitting children to play on the deck is breaching the lease.


Hypothetically, a court might find it unreasonable to: prohibit drying washing on a balcony; prohibit storing your bike on a balcony; prohibit storing your bike in the communal courtyard; etc, etc - but that doesn't nullify leasehold covenants.




Edit to add...

The OP could ask the freeholder which clauses in the lease they believe prohibit children playing on the deck, to see if they agree with the freeholder's interpretation of those clauses.

Schwarzwald

silvercar said:

“ one rule is children can’t play in the communal area.” I would consider that an unfair contract term. Saying children need to be supervised is one thing, saying they can’t play in a communal area strikes me as unenforceable.

Why is it unfair to say that a communal space is no playground?
it doesnt day kids cant be in this particular area, but making it a playground also doesnt seem “fair” to those without kids who liked the block of flats as it seemed v quiet … the fact that the next playground is 10min away is - while i have sympathy for it - not a good argument to ignore rules

flossymcfly

Could it be that one of the neighbours has tried to get the sex offender moved by saying that it's not appropriate for them to be living there as their window looks on to an area where kids play (or something similar)? This could have triggered the leaseholder to investigate as they may have housed the offender on the basis that it shouldn't have been an issue as their flat didn't overlook a play area.

Just trying to think of it from a different angle

custardly

MalMonroe said:

I'd be looking for somewhere else to live asap, for two reasons -
 
'There is a sex offender living in the complex'

and 

'we each pay £2400 service charge and £300 ground rent every year'

You say,  'we also look after the communal area and our elderly neighbours. It’s a lovely community.'

I'm 73 so I guess you'd call me elderly. But I don't need looking after by any neighbours.

Sorry but it really does not sound like a lovely community.  Containing creeps and sex offenders?   No.

Bang on. Most sensible response here.

Jumblebumble

eddddy said:

silvercar said:

“ one rule is children can’t play in the communal area.” I would consider that an unfair contract term. Saying children need to be supervised is one thing, saying they can’t play in a communal area strikes me as unenforceable.

I'm not so sure. It's very standard for lease covenants to be very specific about what communal areas can be used for. (e.g. just for walking across to gain access to flats, etc.)

The legal argument would probably be that the OP had the opportunity to read the lease (and get advice from their solicitor) before buying the leasehold flat. And if the OP didn't like the terms of the lease, they shouldn't have bought it.


And the fact that the landlord is planning enforcement action suggests that another leaseholder has complained that it's causing them annoyance.

Landlords don't generally take enforcement action for no reason.

Let me correct this for you
The Caretaker has apparently claimed that the building mananger who is presumably  not the Landlord is going to take action.
Who knows if the caretaker is making up fairy stories?