Section 146 Notice- lessee in breach of covenant

[Donkin]

I am a Freeholder and one of the Leasehold flats are constantly doing thing in breach of their lease.

If I end up going to a Solicitor does the following Clause mean I can get them to pay my expenses?

To pay certain costs
(9) To pay all costs charges and expenses (including Solicitor costs and Surveyors fees) incurred by the Landlord for the purpose of and incidental to the preparation and service of a notice under the Law of Property Act 1925 arising out of any breach or non-performance of any of the covenants on the part of the Lessee herein contained notwithstanding forfeiture for such breach shall be avoidable otherwise than by relief granted by the Court

Any help appreciated

[Poppy]

I am a freeholder. My leases contain a clause very much like the one you quoted. If I felt it necessary to consult a solicitor I would reclaim the cost through the service charge. So the short answer is "yes" you can recoup your professional expenses via the service charge.

May I ask you to share the problem here. What are the breaches?

I have experienced a couple of problems. I have so far managed to resolve the problems by writing a letter to the lessee's mortgage lender. I tell the mortgage lender what the breach is and tell them if the breach is not remedied I will take further action which may lead to forfeiture of the lease. What then seems to happen is that the mortgage lender will write to the naughty borrower/lessee and I have never had to take things further or write any further correspondence.

Going to a solicitor is the very last thing I want. (Don't feed the sharks!)

[Donkin]

If you read my previous threads as a Freeholder you find I do not have the best Leaseholders in the world.

Two items irritate me.
1 They will not repair parts of their Flat.
2 They have fitted a satellite dish - breach of lease and against Conservation Area regulations.

The relevant Clause being - Not to build or set up or suffer to be built set up or maintained in the Flat any erection structure ...... nor place or attach or maintain any structure on or to any part of the Flat

Some time ago we went to a Solicitor who said use a Section 146 to get Leaseholders to repair damage and remove satellite dish. Now some he tells me that a S146 is for getting Leaseholders to carry out maintenance but not the way to go for the simple breach but to use some other piece of legislation.

Is he right and if he is what is this other legislation known as. Due to the delays/ innacuracies in his work so far, I want to understand what to ask for when approaching other Solicitors.

[jeffrey]

If you read my previous threads as a Freeholder you find I do not have the best Leaseholders in the world.

Two items irritate me.
1 They will not repair parts of their Flat.
2 They have fitted a satellite dish - breach of lease and against Conservation Area regulations.

The relevant Clause being - Not to build or set up or suffer to be built set up or maintained in the Flat any erection structure ...... nor place or attach or maintain any structure on or to any part of the Flat

Some time ago we went to a Solicitor who said use a Section 146 to get Leaseholders to repair damage and remove satellite dish. Now some he tells me that a S146 is for getting Leaseholders to carry out maintenance but not the way to go for the simple breach but to use some other piece of legislation.

Is he right and if he is what is this other legislation known as. Due to the delays/ innacuracies in his work so far, I want to understand what to ask for when approaching other Solicitors.

Section 146 in fact relates to restrictions on L's right to forfeit lease on grounds of breach of ANY covenant (except non-payment of rent).
.
It demands a warning notice to T. This must specify breach, require T to remedy (if that is feasible), and require compensation for breach. Only thereafter can L enrorce lease clause re forfeiture or re-entry.

[Poppy]

A s146 notice does serve the purpose of informing a tenant that a breach is suspected and requires rectifying. (Which is what you thought, isn't it?)

It would appear that the ability to issue a s146 notice has been pegged by the Leasehold and Commonhold Reform Act 2002. It would seem that a LVT would first need to rule on whether a breach has been committed.

I await correction by more learned members.

Try researching in this area in the meantime.

Any success in finding suitable solicitors?

[jeffrey]

A s146 notice does serve the purpose of informing a tenant that a breach is suspected and requires rectifying. (Which is what you thought, isn't it?)

It would appear that the ability to issue a s146 notice has been pegged by the Leasehold and Commonhold Reform Act 2002. It would seem that a LVT would first need to rule on whether a breach has been committed.

I await correction by more learned members.

Try researching in this area in the meantime.

Any success in finding suitable solicitors?

Well, see s.168 of 2002 Act. This applies only if there is a long lease of a dwelling (as defined).

If so, s.146(1) notice cannot be served unless breach confirmed by LVT (or court) or admitted by T.

S.169 contains supplemental provisions.