LandlordZONE

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Apr, 2014

Thursday

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  1. #51

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    When I spoke to the Company X - the original Lesser - regarding the dog in a flat they did not say they are not in charge of the property and have no say in this matter. The lady I spoke to said that she is not sure and will ask someone from 'legal department' and put me on hold. Then she said to ignore the letters from the PM as long as the pet is behaving good and not causing nuisance (there was no complaints-she confirmed)

  2. #52
    Join Date
    Jun 2010
    Location
    Foundation trench for New Shed@ Ham on Rye
    Posts
    13,722

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    I have given this some thought. Where the PM is wrong is that you are not in breach of payment of rent and service charge as clearly you have, the point is doing so is arguably a waiver. As a dog is considered a continuing breach, not once and for all, payment is not a simple waiver.

    There is an argument to be made for waiver by landlords X and Y who until recently were
    A: happy that buyers and residents were able to have dogs
    B: were at the worst not bothered about them
    C: that the earlier and current PM have managed the premises and have not acted on the issue, which given the number of dogs and a normal number of visits they should be now have been aware earlier. I suspect they were, & it’s only a complaint that has sparked the issue.

    The argument taken together is that they are estopped by prior agreement and acquiescence, or have in effect waived the covenant by repeatedly declining to take action in the face if evidence to the presence of dogs. There may even be a case for misrepresentation against X.

    The argument of the length and complexity of the lease is fallacious, it may have worked with mobile phones and PP, and you might argue a pressured environment and the tie in with the solicitor but it won’t wash with leases, and I doubt that you would make precedent on the matter of dog. The lease is clear and you will have to reconcile that with the earlier discussion you cannot say you were not aware, you were deemed to be aware on signature. The other issue of the EU ruling of family life and pets and whether it is an unfair term to exclude completely might have some mileage, or kilometerage.

    None of this is the simple definitive answer you want, any it can only be assessed by a complete review of your evidence and some disclosure of the companies X and Y and the PMs as to what they knew or were likely to know. Even then the chance of success will depend on how it falls on the day.

    It seems odd that this has arisen now and one tactic is with the other dog owners to lobby the freeholder that this will cost them a lot of money, some might end up on the service charge(both depending on the leases) and that perhaps sleeping dogs should be left to lie.

    There may be an underlying problem No 7’s Doberman has eaten the front door of flat 2 and toilets in the patio of No 1. No 7 might be persuaded to control their dog, but ask at a safe distance. And wear running shoes. Just in case.
    Good luck.
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers. More ramblings atleaseholdpropertymanager.blogspot.com

  3. #53
    Join Date
    May 2010
    Posts
    738

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    In practical terms I think you have a good chance of winning but you need to get things right and it might cost you even if you win.

    I think the biggest difficulty the LL has is arguing against what you claim happened under the old Landlord and Managing Agent. From the sound of it the old LL doesn't even know if he still owns the freehold!

    It will probably come down to evidence and witness statements but I think the LL will have a difficult job explaining why 3+ years down the line there are a bunch of pets that have suddenly been noticed for the first time.

    You can then add to that initial hurdle for the LL by giving credible evidence supported by witnesses about what was seen and said by the old LL and the old MA. If you make claims that you and the other pet owners had such and such a conversation with such and such a person and such and such a person was aware of the pets. You bring along these witnesses to the hearing. Then how does the new LL and MA refute what you are saying? He's going to have to produce the people you have named and they might not even be around anymore and why would they want to come and give evidence anyway?

    If it was me I'd try and nip it in the bud by getting together with the other pet owners and coming up with a detailed case. Produce a big list of events including names and dates. Present this to the LL now before he starts incurring costs.

    Then you have your 'unfair terms of lease' argument too and reference case in support.

    Costs can often be the biggest barrier to fighting the LL who is claiming you are in breach.

    Solidarity might in the end be the key.

    I know if I was the Landlord I'd think it was probably not worth it. He should still have the nuisance covenants to deal with any nuisance pets.
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  4. #54

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    Thank you for your advice.

    I will wait and see what happens.

    It just seems that the PM rotweiler is not going to let go! The odd thing is she one week she sent letter saying that she will contact solicitors and next week she says that she will contact my mortgage provider to inform them that the property is at risk and they should act.
    I spoke again to the Bank explaining the whole situation (breach and pets) and they were very surprised and have never had a situation like this before and they are not going to do anything. They said they will not give any info on me without my permission as I pay everything on time. They will send me a confirmation letter so I have it in writing.
    So clearly the PM is wrong on this and it really looks a bit strange to me - like she is desperate to scare us and get rid of the dog before anything goes to court. Is she helping me or herself?

    Anyone knows a good solicitor? Just in case?

  5. #55
    Join Date
    May 2010
    Posts
    738

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    A couple of other ideas in regard to getting a case together. Quite tough to execute but useful if you manage it.

    Explain your problem to the old LL and inform him that he doesn't actually still own the freehold! Ask him if he'd put something in writing to outline his policy when he was freeholder.

    If you don't have any luck with that see if you can find if he owns any other freeholds with similar leases (I know it's a long shot). Then try and show that his current policy is to turn a blind eye which will then support your argument that he did that when he was freeholder of your property.
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  6. #56
    Join Date
    Jun 2010
    Location
    Foundation trench for New Shed@ Ham on Rye
    Posts
    13,722

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    One word ask for "Mediation".

    Your local county court may havbe a free service or try
    http://www.brethertons.co.uk/Home/Bu...Mediators.aspx
    http://www.rics.org/qa/join/member-a...ice/mediation/
    http://www.civilmediation.justice.gov.uk/

    It puts the brakes on legal action in many respects.

    I have done quite a lot in the last year and so many of these tricky situations get talked out.
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers. More ramblings atleaseholdpropertymanager.blogspot.com

  7. #57
    Join Date
    Jun 2010
    Location
    Foundation trench for New Shed@ Ham on Rye
    Posts
    13,722

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    What I didnt add is that even if the matter is resolved that still doesnt preclude the landlord and agent taking action where there is a nuisance.
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers. More ramblings atleaseholdpropertymanager.blogspot.com

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