Wilful Breach during Enfranchisement Process

[Donkin]

From previous posts I am a Freeholder of a converted house. The two leaseholders have started the Enfranchisement process and I have submitted my Counter Notice last week.

The people upstairs have just damaged the roof to re-install a satellite dish. They know that fitting a dish is a breach of the lease. Previously I had a lot of communication about the satellite dish and roof. It got as far as the subject of a Section 146 but the Solicitor delayed and I was served with the Enfranchisement which effectively stopped me issuing the S146.

I have assumed they do not intend to pay the premium in the counter notice or they would have waited a couple of months then altered their lease to allow the satellite dish.

Do I have to wait until the time period for the enfranchisement passes or can I serve a S146 now?

What other options do I have?

[Poppy]

Sorry, what is prompting you to doubt whether you can serve a section 146 notice under the Law of Property Act 1925? (I presume this is what you mean.)

I understand that you are being forced to undergo the enfranchisement process because your lessees think they know better (tut!). But I cannot see (at present) anything in the Commonhold and Leasehold Reform Act 2002 which suggests that unresolved breaches must wait until enfranchisement has been sorted out.

I recommend that you find the answer in the Commonhold and Leasehold Reform Act 2002 legislation.

In your opinion your solicitor delayed and has now put your position into doubt. Do you still trust their "professional" ability?

Perhaps you may have to start an action as fundamental as obtaining a ruling to decide which must be resolved first: the breach or the enfranchisement. Oh boy!

[Poppy]

I need to ask a silly question. Have you searched the Law Society (http://www.lawsociety.org.uk) website for a list of solicitors who specialise in residential landlord and tenant matters?

[Poppy]

To Corinne Tuplin

You are a Topic Expert on this website and I notice that your posts are solely on the Leasehold and Commonhold Questions forum. Does your Practice only represent the lessee's side?

I am interested to know whether you have followed Donkin's posts on the matter of his lessees' attempts to wrest ownership of his property using the Collective Enfranchisement laws?

[Corinne Tuplin]

Dear Poppy,

I deal with both leaseholders and freeholders struggling to find their way round the leasehold maze.

Donkin, the collective enfranchisement process does not restrict a freeholder's right to repair and maintain the property until such time as the freehold asset is transferred, either by agreement or by order of the Leasehold Valuation Tribunal. If you feel that one of the leaseholders has breached a term of the lease, you can take appropriate action. By the way, any changes the tenant made to his or her lease without your consent at this time would not be lawful. Are you certain this has occurred?

My final point is how much time and money do you wish to spend on this? Now that a Counter-Notice has been served, negotiations for the best sale price possible are generally of uppermost priority. It may be an idea to discuss negotiation tactics with your solicitor/chartered surveyor.

I hope this assists.

Regards,


CORINNE TUPLIN
DIRECTOR
PRO-LEAGLE
www.proleagle.com

[Donkin]

Thanks for the advice.

I do not think the property will be enfranchised. Our Surveyor came in with a Leaseback value 15 times higher than they offered. I believe that the leaseholders will allow the 6 months negotiation period to run out without any further discussions.

It isn't that they have changed their lease, only if there is a Clause they don't agree with they ignore it. If we try to talk to them Mrs X repeats " Are you threatening me" over and over again. So we have given up on the negotiation/ arbitration idea and we have to end up at the Solicitor again.

The Leaseholders have definitely breached five clauses in their Lease, where the breach is ongoing.

So section 146 is the way to go.