1. Use language that people can understand!
There has historically been a tendency for some property lawyers to use language which is almost incomprehensible – a habit which annoys us enormously! Not only can the sentences be too long with inadequate punctuation but the vocabulary can be obtuse and recognisable words can be used in unrecognisable ways. Lawyers have developed an unshakeable reputation for using words such as ‘heretofore’ or ‘aforesaid’ and inserting Latin phrases which only serve to drive others to distraction.
The good news is most modern leases are not written in such a way and due to the Unfair Terms and Regulations, leases written after 1995 which are written in such an unintelligible way will not be enforceable.
2. Terms which unfairly burden consumers
The Office of Fair Trading forbids some terms which are deemed to unfairly encumber the consumer (or leaseholder) or unfairly benefit the supplier (or freeholder). Sometimes, efforts are made to sneak such unfair terms into long leases in particular.
An example often seen is a clause inserted at the end of the lease which requires the leaseholder to state that they have ‘read and understood’ everything. Given how long and complicated the lease can be, it is unreasonable to expect that this would be the case. Ultimately, inserting such a clause marks an attempt to trap the leaseholder so that should an argument arise, the freeholder and his solicitor can simply point to the fact the leaseholder claimed to have read and understood all terms in the lease. Another common tactic is to use a clause giving the freeholder the last word on whether the leaseholder or freeholder has carried out the necessary duties specified in the lease. Some leases will also include disproportionate penalties for breaches of lease terms.
Thankfully, the OFT has largely succeeded in stamping out such underhand tactics. However, given the danger of such unfair clauses, it is crucial leaseholders instruct specialist solicitors to protect their interests. A solicitor will also be able to advise you on whether the Landlord and Tenant Act which protects leaseholders in various ways.
1. Respect quiet enjoyment and exclusive possession
It is crucial that the freeholder respects the leaseholders’ rights of ‘exclusive possession’ (the right to exclude others, the freeholder in particular, from the property) and ‘quiet enjoyment’ (the right to avoid interference from the freeholder provided that the property is being used legally) of the property.
The ‘right to enjoyment’ can be complex because the right only applies to breaches by the freeholder and their agent. Therefore, if the freeholder carried out noisy work in the building which disturbed you as the leaseholder, they are in breach of your right to quiet enjoyment. However, if another leaseholder plays loud music all night they cannot be breaching this right because they are not bound by it. Instead, you would need to take nuisance action against them.
2. Section 48 Notice
Section 48 of the Landlord and Tenant Act 1987 offers important protection to leaseholders as well. It exists to prevent freeholders simply ‘disappearing’ by failing to provide contact details for example in an attempt to shirk their obligations. Freeholders are legally obliged to provide leaseholders with a name and address in England or Wales through which they can be contacted. This address needn’t be a home or registered office (in the case of a property company); it could be a solicitor’s office or a property management company’s office. This can be particularly helpful for leaseholders whose freeholder has moved overseas.
This notice can simply be included in another document and the freeholder will not be able to claim that they never saw the notice if it is sent to the address listed: pleading ignorance is not a valid excuse. If the notice is not served, the leaseholder can withhold payment of rent arrears or service charges until the notice is provided.
3. Good Management
Freeholders are legally required to check that responsibilities as a manager are fulfilled in the proper manner. If a leaseholder believes that the freeholder is not fulfilling their management duties they can take their freeholder to the Leasehold Valuation Tribunal (LVT) which will make a judgement and can punish or demand action from the freeholder. This process can be drawn out and expensive but is better than leaseholders taking matters into their own hands by refusing to pay service charges for example, which could place them in breach of their lease.
Dial 01722 422300 for expert advice on leaseholder rights and obligations
It is crucial that both leaseholders and freeholders are fully aware of their rights and responsibilities. For more information on this complicated area of property law, call our leasehiold extension specialists on 01722 422300, or
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