Freeholders claiming lease is 'incorrect'

eddddy

bouicca21 said:

Inspired by this thread I read my lease.  It makes no specific mention of responsibility for windows (other than keeping them clean).  But I know that when the windows were replaced by the freeholder several years ago, one leaseholder refused to pay and theirs were not replaced.  Some time later the new owner did replace them - at their own expense.

It does seem that there’s a lot of room for interpretation and ambiguity.

Based on what you say, I suspect your situation might not have been ambiguous. It was probably like this...

• The leaseholders (flat owners) were responsible for their windows.

• The freeholder offered the leaseholders a voluntary deal - "Everyone's windows are in poor condition. I can arrange for a window company to come along and replace your windows. It will be cheaper if one company gets them all done at the same time - rather than each of you hiring your own company. You'll each have to pay for your own  windows."  And one leaseholder declined the offer.

If the windows were the freeholder's responsibility, the situation you describe would have been breaching the lease. (The leases would say what percentage of repair costs each leaseholder has to pay. One leaseholder cannot refuse to pay their share - even if the windows in their flat are not replaced.)

CleverFable

CSI_Yorkshire said:

From their side - saying it is ambiguous - yes.

From your side - saying it has a clear definition - no.

Hence looking to case law. 

eddddy said:

CleverFable said:

I just wanted to know if freeholders can state a lease is incorrect, when they did not originally write it and no changes have been made since. If deemed incorrect it would be in their favour. I have no experience of this so just looking for some help  

This is all getting a bit philosophical... but a lease cannot really be 'incorrect' in this context. That would be an illogical concept.  If the freeholder is saying the terms of the lease are factually 'incorrect', what 'facts' is it contradicting?


But legislation can modify lease terms - as you've seen, the Housing Act adds implied terms to your lease (but those terms don't seem to mention anything related to windows).

CleverFable said:

Unfortunately as I mentioned in my first post I am selling the property (offer accepted way before the section 20 was issued) and I really need to get this sorted so I don't have the option of sitting and waiting. 

What's the buyer's current view on the s20 situation? Do they know about it?

I suspect that if you tell them, and you expect them to pay the bill, they'd walk away. So you'd end up still owning the flat and potentially having to pay the bill.


One way of dealing with it could be that you indemnify the buyer for all costs related to the s20 consultation. i.e. You sell the flat, and agree that you pay the freeholder for any window/door replacement - and you continue to fight the freeholder, at a tribunal if necessary.

So if you win your fight with the freeholder you pay less/nothing, if you completely lose you have to pay the £14k.


(Although, I notice from your previous post that buying your new place AND paying £14k might not be achievable - maybe you can only afford to do one or the other, not both.)

The exact wording in regards to if the windows were excluded from the repairs in the repair covenant the freeholders said was "If we followed and applied clause 3(ii) (where I believe the lease has been worded incorrectly)," 

The council does appear to have deliberately added that the windows were excluded from the repair covenant when drafting the lease.

The buyer does know about the section 20 and are not willing to proceed unless they don't have to pay anything, which is fair enough (although no work had been done yet!). I am annoyed at having to pay £14,000 when I have already paid to replace my windows (with full permission/consent from the leaseholder) so don't really want to pay again! Multiple leaseholders have replaced their windows over the years, mainly due to the fact that when all the windows were replaced with double glazing before I moved there only the tenant flats were done and the leaseholders were excluded from the works.

I've already said I'm happy to take to tribunal and keep fighting against it when sold but understandablely they don't want to do this, they want full confirmation they won't have to pay. 

No I can't afford both unfortunately!bouicca21 said:

Inspired by this thread I read my lease.  It makes no specific mention of responsibility for windows (other than keeping them clean).  But I know that when the windows were replaced by the freeholder several years ago, one leaseholder refused to pay and theirs were not replaced.  Some time later the new owner did replace them - at their own expense.

It does seem that there’s a lot of room for interpretation and ambiguity.

It's all a bit confusing isn't it!

CleverFable

I will just add that I've said all along to them that it happy to pay genuine communal charges, just not the windows in everyone else's flats when I don't think we should be. The freeholder is a huge national company who have just been given £18m to update people's homes so it does feel a little unfair 😅

eddddy

CleverFable said:

I've already said I'm happy to take to tribunal and keep fighting against it when sold but understandablely they don't want to do this, they want full confirmation they won't have to pay. 

They will have full confirmation that they won't have to pay, if you indemnify them using a legal agreement drawn up by solicitors.

But they'll probably want £14k retention arranged by the solicitors.

In simple terms:

• £14k of the sale proceeds is kept by the solicitor (i.e. £14k of your money)

• If it turns out that the freeholder 'wins', and £14k is payable, the retention money is used to pay the bill

• If you partially 'win', and only £5k is payable, £5k is used to pay the bill and the remaining £9k is given to you

• If you completely 'win' and £0 is payable to the freeholder, the full £14k is given to you

It's a fairly standard process - but if it ends up at tribunal, it could take a year or more - so the £14k would be tied-up for that period.

CleverFable

Yes they've already asked for a retainer, however I don't have this money to put in to a retainer, even after the sale. 

This is why I am trying with the consultation period to agree with the freeholders where our responsibilities actually lie...and not based on them thinking the lease is incorrectly worded. 

They are unfortunately absolutely terrible and responding so in the periods where I wait I try to gather more information. I've had no response to my previous 3 emails and I've called to speak to them multiple times to be told "we'll call you back" when they don't. Never mind the 21 days they're supposed to reply in according to the Section 20! 

They've not even surveyed the building and some of the items on the quote they were not aware were even on there/didn't realise what they were so it's a bit of a mess. I'm so stressed with it all.