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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I live in a leasehold property and am a shareholder with several

Resolved Question:

I live in a leasehold property and am a shareholder with several other leaseholders in a company which owns the freehold. The directors of this company are using a covenant in the lease as a means of interpreting strictly covenants and developing what they have termed 'Fundamental Operating Procedures' to govern use of the land.

The covenant is worded as follows

12. To comply with regulations which the Landlord or the Management Company may from time to time make for the safety care and cleanliness of the Estate and the comfort and convenience of the tenants and occupants of all the flats.

But this is then used to draft policies like this

Residents may not carry out activities or place structures on patios or in back gardens which may produce unacceptable noise, visual intrusion or invasion of privacy. Common sense and mutual respect shall prevail but in cases of doubt LMCL shall be the sole arbiter.
[There are no Leasehold or Freehold covenants covering these specific common sense items. However, the above clarification is expected to be supported by the majority of Residents at a Residents Meeting and Leases Schedule 3 Regulation 12 and Freeholds Clause 8.1 entitles LMCL to make such stipulations.

The general justification for the existence of these policies is as follows

Ludshott Management Company Limited (LMCL) has a responsibility to conduct its activities in accordance with the terms and conditions set out in the Leasehold and Freehold documentation of properties on the Ludshott Manor Estate. Occasionally discrepancies or anomalies are found in this legal documentation or other situations arise where LMCL must interpret clauses to provide resolutions to practical management situations. Under these circumstances LMCL records the interpretations as ‘Fundamental Operational Policies’. This is to ensure consistency should an interpretation of the same discrepancy or anomaly be required again. Fundamental Operational Policies (FOPs) are not covenants or regulations, they are a record of how LMCL has interpreted Covenants and Regulations on behalf of Residents and the Landlords. FOPs are available for scrutiny by all Residents and are formally reviewed at Residents Meetings. They are directly linked to the relevant clauses of a property's legal documentation and as such are binding for all Leaseholders, Freeholders and any guests or tenants.

I take issue with the whole concept, as none of these FOPs I have signed as part of contract and therefore should not be bound by.

Any views?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Are the regulations that are formulated from time to time supported by a majority of residents in your view please?

Customer:

Yes, with the exception of the one I have quoted

Joshua :

Thanks. Such a provision in leases is very common and the idea behind it is that not all circumstances and eventualities can be anticipated by the person drafting the lease and according such a provision is proposed to allow the landlord or management company to effectively manage the property and grounds rather than being rigidly bound by lease provisions.

Joshua :

Any regulations formulated under the provision must stand up to a "reasonableness and proportionality test"

Joshua :

The tenants can either challenge such conditions which do not satisfy this test by way of a shareholder vote or alternatively any individual tenant can challenge the management company at a leasehold tribunal

Joshua :

An application can be made to an LVT as above using the following form if this becomes necessary:

Joshua :

Sorry for the delay. The courts website seems to be down at the moment and I am having trouble obtaining the link...

Customer:

ok not a problem

Customer:

the background is that the property is one of a number in a converted stately home - the freehold company officers are generally retired people who tend to be extremely officious and attempt to throw their weight around

Joshua :

This is the link to the forms (which is not working at present). The one you require is the application for a determination that a breach of covenant has occurred. They should fix the website shortly.

Joshua :

Is there anything above I can clarify for you?

Customer:

I do not agree with the FOP they have proposed - both in legal terms and because it would represent an extension of their perceived control over the estate

Customer:

based on the wording, do you think it likely that the court would agree with the regulation regarding patio use?

Joshua :

I cannot see any difficulty with prohibiting acts that create nuisance. In fact there is already statutory legislation that deals with nuisance.

Joshua :

It would depend on practically how that is interpreted and implemented. It is not appropriate or lawful to unreasonably interfere with a leaseholders enjoyment of his own property without reasonable justification which would be founded on interference with others enjoyment. e.g bbqs that create smoke can be deemed inappropriate if in close proximity to other dwellings. Tables and chairs on the other hand would likely be disproportionate if they were banned.

Joshua :

Is there anything above I can clarify for you any further?

Customer:

No I think I understand, thanks for your help

Joshua :

A pleasure. I hope you are able to reach a sensible resolution with the management company

Customer:

actually there is one thing

Customer:

just to clarify - there is no covenant governing use of patios etc in the way referred to, whereas the other regulations are essentially interpretations of existing covenants

Customer:

can a regulation not specified in covenant/contract be enforceable in such an absence

Joshua :

Yes it can if there is a provision in the lease that the management company can make further regulations providing such further regulations pass the reasonableness test discussed above.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

That's it for now - thanks very much

Joshua :

A pleasure

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua
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