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Does a failure to comply with a requirement of a Building Lease

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contract by one party automatically...
Does a failure to comply with a requirement of a Building Lease contract by one party automatically enable the other party to the same contract exercise a similar rite? Evan
Submitted: 2 years ago.Category: New Zealand Law
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5/3/2015
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
Chris The Lawyer
Category: New Zealand Law
Satisfied Customers: 15,064
Experience: 38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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No. A breach of the lease, which a failure to comply is in reality, does not entitle the other party to also breach the lease. Of course the issue is what did one party fail to comply with?
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Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
It would help me answer better if you advised what the requirement was.
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Customer reply replied 2 years ago
There is a specific requirement in the lease for both parties to pay into a an account equal sums monthly. One party does not believe he has to (the property owner) while the other party has religiously complied
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
What is the account for? If the lease says you must, then this is a breach of the lease.
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Customer reply replied 2 years ago
Yes I agree but if I initiate proceedings it is going to cost me a lot of money. I was hoping some dispensation would be grant me if I were taken to court and explained my frustration and the unfareness of the owners action in thisw case - the account is for a building maintenance expenses
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
You could tell the landlord that you intend deducting from your rent, what he should be paying for the expense, and paying this into the account.
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Customer reply replied 2 years ago
The total sum owed the account by the Landlord is in the order of $70k to date. Am I restricted in any way as to the amount I can deduct from Lease payments? Payments according to the lease are required monthly
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
That could lead to a confrontation of course. Is this a large commercial landlord or a difficult individual?
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Customer reply replied 2 years ago
A very difficult individual
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
Has he given any reason why he is choosing not to make the payments?Usually the landlord drafts the lease, so it would have come from him and his lawyer.
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Customer reply replied 2 years ago
He alleges the previous tenant knew he didn't pay and that he believed I had been told of this by that tenant. Such a claim I will refute, what is more, there is no amendment to the reassigned lease agreement
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
Unless the requirement was deleted, he is stuck with this. So since he wont comply perhaps my suggestion of deducting the payments going forward will bring this to a head.
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Customer reply replied 2 years ago
The lump sum or a reasonable proportion of it monthly, or just the amount stipulated within the Lease $500/month?
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
Perhaps start with the amount of $500 and see what this provokes
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Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
Is the money in the account under joint control? Is it actually used for maintenance?
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Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
I mention that as that would ensure the money is safe
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Customer reply replied 2 years ago
Yes it is and they to date have not attempted to draw on it for their use.
I have to seek approval from them to release funds for maintenance we have undertaken which to be fair has not been an issue but it seems to me that they are claiming what they have spent independently to comply with their obligations as specified in another part of the lease document is their compliance with the requirement to the maintenance fund
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
That is not strict compliance, but arguable on their part. So as I suggested going forward, if you start the payments of their share deducted from rent, this could bring this to a head
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Customer reply replied 2 years ago
Thanks Chris, I think that gives us some hope. I realize we are advised via your service to seek confirmation for the advice from our own Solicitor to verify our course of action which we have already done and was advised it could cost us upwards of $20k + if we initiated proceedingsThank you for your adviceEvan
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
The key is to make the landlord do the work. He would find it hard to challenge the payment into the maintenance account if he was not doing so pursuant to the lease.
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Customer reply replied 2 years ago
Many thanks
Solicitor: Chris The Lawyer, Lawyer replied 2 years ago
I hope this works out with your difficult landlord
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