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Property Disputes: Your Questions Answered - Winter 2015-16
I am a tenant of a flat in an apartment block containing several flats. My lease is a 999 year lease. Last year, I had to issue proceedings against the landlord to get him to deal with disrepair affecting my flat. I eventually reached a settlement with him and he agreed to pay damages and my costs. 6 months later and he is now trying to recover these costs by putting them through the service charge provisions in the leases! Can he do that?
Firstly, check the wording of the service charge provisions in your lease. A typical costs recovery clause might say that the landlord is entitled to recover the costs that it incurs in relation to ‘the management, administration and maintenance of the block of flats’ or words to that effect.
Assuming that the provisions of your lease are very similar, you have a strong argument that the costs that the landlord is seeking to recover cannot sensibly be described as arising out of the management or administration or maintenance of the block of flats. To the contrary, the costs have arisen as a result of a failure to manage and maintain the block. Payments arising from a proven breach of covenant have nothing to do with the building itself.
The only caveat to keep in mind is that if your lease provides that the landlord is entitled to recover costs relating to the management and administration of the landlord (in addition to management of the block), the landlord may be able to muster more of an argument. But even in that case, I suspect that the landlord would struggle to justify recovering costs that have been caused by the landlord’s own failings.
I have a situation where I own the freehold of commercial premises. It is a large retail unit. Before Christmas I was in discussions with a potential tenant about granting a lease of the unit. The tenant was desperate to start trading as soon as possible so I allowed him into occupation whilst we continued to try to thrash out the terms of a lease. The tenant has been paying me a monthly rent since he took occupation in November. Negotiations for the lease have broken down and I am getting the impression that he thinks he may have acquired some form of security of tenure. Should I be concerned?
It seems that what you have here is a tenancy at will. A tenancy at will does not attract any security of tenure. Your tenant was allowed into occupation whilst negotiations were taking place and pending the negotiation of lease terms. On the facts that you have described, it does not seem to me that the parties intended for there to be anything more than this whilst those negotiations were taking place. Case law is on your side including the case of Javad v Aqil. The Judge in that case rejected an argument that an implied periodic tenancy had been created and held that the tenant occupied as a tenant at will. The facts of that case bear comparison with yours.
I am in the process of repossessing a flat that I own which is let to a disabled tenant. The tenancy was originally an Assured Shorthold Tenancy Agreement which I granted for a 6 month term. That term has now expired and the tenant has been holding over paying a monthly rent. I need to sell the property and I therefore served a section 21 Notice on the tenant last year. He has refused to vacate and is arguing that repossessing the property breaches his Human Rights. He has now instructed solicitors and they are referring to Article 8 of the European Convention on Human Rights. Where do I stand on this?
Human Rights arguments have been a minefield for landlords in recent years. Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8 also states that “There should be no interference by a public authority with the exercise of this right except such as in accordance with the law...or for the protection of the rights and freedoms of others.” All of this has proved problematic for the Courts in recent years but the short answer to your question is this: your tenant’s argument will fail. In McDonald v McDonald, the Court of Appeal ruled that Article 8 cannot be relied upon where a private landlord is seeking possession on the basis of a section 21 Notice. There have been many Article 8 challenges over the years but McDonald v McDonald has finally put the private landlord issue to bed.