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a lessee has knocked down plaster ceilings and walls on the top floor of a Victorian property as a commencement to substantial refurbishment. she was unaware of the need to apply for a licence to alter. she has now down so though the licence has not yet been completed. she has complained to the freeholder that the building roof is damaged and the whole structure must be replaced. the freeholder is concerned that the demolition of the plaster ceilings has caused damage to the roof but cannot prove it and has had great difficulty obtaining access. is the demolition of the plaster walls and ceilings without a licence a sufficient breach of covenant to consider issuing a s.146 action? in the lease plaster coverings form part of her demise. the lessee is abusive, aggressive and generally obstructive with the landlord's builder or other representatives and matters have more or less reached an impasse. the building's other lessees are convinced that this woman's agenda is to create a recreational space on the roof that only she will have access to. the freehold wishes to institute forfeiture proceedings if it can find a sufficient basis to do so as it is evident this lessee is going to be a continuing problem.
Hello, I am LawDenning and I am a practising solicitor in a High Street practice. I have beenan expert on this website in UK law since 2008. During that time, as youappreciate, I have answered thousands of questions from satisfied users on avariety of subjects.
Becausewe 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 caseIt is my pleasure to try and assist you with this today. Please bear with mewhile I gather some further information from you in order for me to be able toadvise you fully.
Just because she is anobnoxious leaseholder and is going to create future problems, does not give youthe right to foreclose on the lease , even for section 146 purposes. If thecourt was satisfied that you were using section 146 for any other reason thanfor s146 purposes, then your application, would fail automatically
Whether she is allowedto remove nonstructural things such as plasterboard walls and ceilings reallycomes down to what is included in her demise. In that respect, it is necessaryto study the lease in minute detail as it is with regard to the alterationsthat she has done and whether she needs a licence to alter which it appears shedoes that is almost completed in any event, it seems.
Whether the roof isdamaged or not comes down to the evidence of the surveyor. It is unlikely thatremoving ceilings or walls would affect that although it depends on exactlywhat she removed. Once again, it comes down to a surveyor's report.
She is not able to usethe roof space, unless the roof space is in her demise, so I cannot see thatshe can create a recreational space on the roof (a roof terrace?) Without thefreeholders consent of course, she may be completely responsible for the roofin which case, then subject to agreement from the freeholder, she may be ableto do what she wants to do. The freeholder would not be able to unreasonablywithhold that consent.
She would of courseneed planning permission and it may be that in order to apply for planningpermission, she has to seek the consent of the landlord. Once again, it isnecessary to consult the lease in detail.
To answer yourquestion as to whether it's a sufficient breach of covenant to issue a section146 action would come down to what is included in her demise and exactly whatbreach she has done. Let me tell you now that the usual remedy would not beforfeiture, but it would be reinstatement. I am afraid that you are unlikely toget rid of her that quickly because the court's view is that forfeiture of thelease, or a breach of covenant is, more often than not, a disproportionateremedy to the breach itself.
I'm sorry, Iappreciate that parts of this are probably not what you wanted to hear, butthere is no point in me misleading you. I have a duty to advise you truthfullyand honestly, even if that advice is unfavourable.
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