Ambiguity in lease – who does it fall to?

Ambiguity in lease – who does it fall to?

0:06 AM, 19th May 2023, About 9 months ago 14

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Hi, Our block of flats has recently had a section 20 notice issued, with a large cost attributed to the four leaseholders in the building. All of us have contested this as we believe that not only are the works unnecessary, the costs are unfair and unreasonable. We feel that the lease is ambiguous on who should be responsible for the repairs.

There has been a lot of back and forth between us and the freeholder but we are both determined in our cases and we are looking to take the freeholder to the FTT.

My question is, are there any law cases that look into ambiguity in leases that I can use for my case?

I have found one based in America but not any for the UK.

I have one case that the freeholders have tried to use (related to the works) but after reading this closely I found I could use this against them instead.

It would just be helpful to learn a bit more about ambiguous leases.

Thank you,

Robyn


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Comments

Blodwyn

11:31 AM, 19th May 2023, About 9 months ago

Get legal advice on your particular case.
My recollection is that the basic principle is that ambiguity in a legal document goes against the person seeking to rely on it.

Derek t

11:32 AM, 19th May 2023, About 9 months ago

Take it to the ftt get independent quotes for the works to the spec of the original quotes.
Unfortunately the cost for repairs will be to the leaseholders but at least if the ftt are involved it should be fair

Kizzie

17:28 PM, 19th May 2023, About 9 months ago

What is the actual wording in the lease? Not what you think it means but word for word. Read Arnold v Britton 2015.
Apply to the FTT for a determination. It all depends on what was the original intention of the lease as a legally binding contract on the parties to it.

Robyn

13:44 PM, 22nd June 2023, About 8 months ago

Reply to the comment left by Kizzie at 19/05/2023 - 17:28
Hi - sorry I only just saw that my original question had been posted!

The work is to replace the windows in the block, and charge the leaseholders as it is part of the 'building' costs.
The lease states:
'The council to keep in repair the structure and exterior of the flat and the building, including drains gutters and external pipes but excluding windows and to make good any defect affecting the structure'

The freeholders are saying that they think the wording of this part of the lease was written incorrectly and is ambiguous. The leaseholders are claiming that as it specifically calls out that the windows are excluded that they cannot be charged for as part of the building repairs.
Previously, the same works were undertaken on the block and the leaseholder flats were excluded from those works, with only the tenant flats benefitting. They are now wanting to charge the leaseholders to do the same works for both leasehold and tenants - with us expecting to contribute a lot of money.
I am looking into taking them to the FTT.

Robyn

13:46 PM, 22nd June 2023, About 8 months ago

Reply to the comment left by Derek t at 19/05/2023 - 11:32
Hi,

We were unable to get quotes as per the normal Section 20 process as they had already got contractors in place a few years ago.
The lease does also specifically call out that the 'windows are excluded' from the freeholder's repair expectations however they are claiming the lease was written incorrectly (many years ago) and is ambiguous.

Kizzie

14:31 PM, 22nd June 2023, About 8 months ago

Hi
The wording of a lease is as was intended by the parties who agreed the lease. There can be no ambiguity.
It is not unusual for windows to be excluded from freeholder repair responsibilities.
Leaseholders have the legal right under section 20 to be consulted for up to three alternative contracts for the works and failure to properly consult means I think if the extra cost to sc is more than £100 pa then that is all the leaseholder is liable for.
Is there a reserve refund?
Also that it is claimed contractors already hired is not reasonable. An application to the FTT for failure to consult under s 20. Full text on internet under landlord & tenant act 1985. Also contact leaseadvice.org.uk for free advice.

Robyn

14:39 PM, 22nd June 2023, About 8 months ago

Reply to the comment left by Kizzie at 22/06/2023 - 14:31
They state on the Section 20 that they intend to carry out the work under an existing long-term agreement from 2021. So we are unable to nominate any further contractors.
No reserve fund. I have spoken to Lease advise and they have been helpful but we're still not getting anywhere!
I agree that the wording as intended and have been told by a few people that ex council properties do tend to have windows excluded but still the freeholders are saying they think it is wrong. I have also contacted the council to see if they will clarify, given that they wrote the lease originally.

Kizzie

8:18 AM, 23rd June 2023, About 8 months ago

Hi
Who are ‘they’? What is their authority? I believe
you are entitled to see this agreement and request information who agreed it. I believe you can issue a section 21(1) LTAct 1985 to the landlord requesting this information.
Template available download from LEASE

Robyn

8:23 AM, 23rd June 2023, About 8 months ago

The freeholders. I don't think we would get anywhere with requesting that information so I am focusing more on trying to settle the Section 20 dispute first.

Puzzler

8:48 AM, 23rd June 2023, About 8 months ago

Reply to the comment left by Kizzie at 22/06/2023 - 14:31
Limit is £250 per flat now.

If the windows are excluded from the freeholder's obligations then you shouldn't have to have them done. But if they need doing you pay either yourself or through the SC.

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