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Nov, 2014

Thursday

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  1. #11
    Join Date
    Dec 2012
    Location
    Isle of Wight
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    282

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    How long was the scaffolding erected - was it for 6 months or is it just your dispute that has dragged on for six months?

    As others have pointed out, if the work was required for the LL to carry out his repair duties, then you have no case after the fact. However there could be a case if the scaffolding was there longer than necessary or reasonable for the repairs.

    Also it is an important principle of contract law that you can only be compensated for actual loss, compensation for lost profits is not usually available - so you would need to have excellent proof that your business suffered an actual loss. There has been a exception to this however (in the case of the MI6 spy Blake and also the Jimi Hendrix Estate case) where the party in breach makes a gain on it, they can be made to pay an amount equal to what should have been paid to you in order to vary the terms of the tenancy (in this case the implied covenant of quiet enjoyment). This has only been successful in very exceptional circumstances though, pretty unlikely here as it doesn't seem like a blatant breach (if it is a breach) for profit.

    If you had spent money on extra street cleaning, on signage, extra advertising hoardings, etc then this would probably be more easily recoverable as actual loss, but the court would be entitled to conclude that you should have taken action at the time - i.e. by seeking an injunction against the LL to remove or mitigate the scaffolding.

    From the facts you have given, you are probably going to have to put this one down to experience. At least presumably the building now looks better for the work?
    caveat emptor
    If it sounds like I know what I am talking about........I don't.

  2. #12

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    FYI....I was outside every day at 7:30 cleaning my footpath (maybe 12-15 feet width) the site was approx. 100-120 feet. Was I meant to do all of this ?The whole length of the work looked run down and uninviting.
    I had no notice of any sort that scaffolding was to be erected surely there if some kind of duty to notify me. I agree the giving of notice was irrelevant as I would still have the same problem but at least I would of had the choice to move out and not have the worry of how to keep my business going while the work to flats above and around me, that had nothing to do with repairing the building, carried on.And have the privilege of being unable to do anything about it and cost me money .

    I just don't understand English law !!

    Sorry if I sound bitter or down but I do appreciate all comments and info

  3. #13

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    The work was not for repair duties as far as I can understand . It was a conversion to flats . Nothing wrong with the building . The scaffolding was there for 6 months give or take a day or two . Mid June to late November.
    To me converting the upper floors to flats made the landlord a vast profit but he still wants money from me after causing ne problems .

    I am not looking to gain lost profits just a common sense attitude of I(the landlord ) caused you inconvenience so I will not expect full rent to be paid
    I would be happy to call it a day and have a clean break making no claims to the landlord and move on to another premises having learned a hard experience

  4. #14
    Join Date
    Dec 2012
    Location
    Isle of Wight
    Posts
    282

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    As they say, the law is frequently an ass. But if your losses are great, then you should should consider going to a solicitor who specialises in commercial leases, there may be something deep within the Landlord and Tenant Act and its amendments which gives a straightforward remedy for this breach of this covenant.

    From just my knowledge, I would say that if the work was not necessary to discharge his covenant to you (to maintain the building) and it was done for profit, then you should have a case. Damages would probably be limited to the amount the Landlord should have paid you to negotiate a variation to your covenant of quiet enjoyment. But... as far as I know this has only been used successfully in the higher courts in 'exceptional' circumstances. However the only 'exceptional' circumstances I can see are that the plaintiffs had very expensive lawyers. But you could try.

    No need to apologise for being bitter - just remember we only have the facts you post on here to go on - sometimes the advice can come across a little cold.

    If you are intent on moving this could prompt the LL to offer you a better deal depending on where you are - i.e. how hard is it to get commercial tenants? I had to offer very good terms just to get mine filled due to high vacancy rates, but as the business takes root it should pay its way (low rent initial period as a sweetener).

    Good luck, and remember to update the thread if you get any better advice or a solution from the LL.
    caveat emptor
    If it sounds like I know what I am talking about........I don't.

  5. #15
    Join Date
    Dec 2012
    Location
    Isle of Wight
    Posts
    282

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    I've done a bit more thinking on this - I have a building where a similar issue could occur, so it was worth it to do a bit of reading.

    First Southwick London Borough Council v. Tanner (1999) established that a covenant for quiet enjoyment could be breached by carrying out structural repairs or maintenance. However Goldmile Properties v. Speiro Lechouritis (2003) (identified by rentreviewspecialist above) found that quiet enjoyment must be weighed against the LL covenant to repair. You'll note the similarity of Goldmile to your case, both in extent and duration. If your LL undertook the works to repair or maintain, then this is where your case would end.

    However, as the LL undertook the work for his reasons then the covenant to repair is irrelevant. Unfortunately I can't find a case that has this circumstance. Anyone help?

    So, you probably have a case, maybe even one that could make the law reports if it is a new application of Goldmile. Won't be a cheap and easy case, but that goes for the LL too so if you appoint a solicitor he may settle.

    Good luck if you go through with it.
    caveat emptor
    If it sounds like I know what I am talking about........I don't.

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