Hello, I am Law
Denning and I am a practising solicitor in a High Street practice. I have been
an expert on this website in UK law since 2008. During that time, as you
appreciate, I have answered thousands of questions from satisfied users on a
variety of subjects.
we are all in practice with clients and court and other users, I might not always respond in minutes,
particularly evenings and weekends. Please bear with me in that case
It is my pleasure to try and assist you with this today. Please bear with me
while I gather some further information from you in order for me to be able to
advise you fully.
Just because she is an
obnoxious leaseholder and is going to create future problems, does not give you
the right to foreclose on the lease , even for section 146 purposes. If the
court was satisfied that you were using section 146 for any other reason than
for s146 purposes, then your application, would fail automatically
Whether she is allowed
to remove nonstructural things such as plasterboard walls and ceilings really
comes down to what is included in her demise. In that respect, it is necessary
to study the lease in minute detail as it is with regard to the alterations
that she has done and whether she needs a licence to alter which it appears she
does that is almost completed in any event, it seems.
Whether the roof is
damaged or not comes down to the evidence of the surveyor. It is unlikely that
removing ceilings or walls would affect that although it depends on exactly
what she removed. Once again, it comes down to a surveyor's report.
She is not able to use
the roof space, unless the roof space is in her demise, so I cannot see that
she can create a recreational space on the roof (a roof terrace?) Without the
freeholders consent of course, she may be completely responsible for the roof
in which case, then subject to agreement from the freeholder, she may be able
to do what she wants to do. The freeholder would not be able to unreasonably
withhold that consent.
She would of course
need planning permission and it may be that in order to apply for planning
permission, she has to seek the consent of the landlord. Once again, it is
necessary to consult the lease in detail.
To answer your
question as to whether it's a sufficient breach of covenant to issue a section
146 action would come down to what is included in her demise and exactly what
breach she has done. Let me tell you now that the usual remedy would not be
forfeiture, but it would be reinstatement. I am afraid that you are unlikely to
get rid of her that quickly because the court's view is that forfeiture of the
lease, or a breach of covenant is, more often than not, a disproportionate
remedy to the breach itself.
I'm sorry, I
appreciate that parts of this are probably not what you wanted to hear, but
there is no point in me misleading you. I have a duty to advise you truthfully
and honestly, even if that advice is unfavourable.
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