QUESTION
I am an owner in a block of flats with a 900 year lease. All owners are also shareholders in the resident management company.
One of the flats in the block is rented out and since the present tenants moved in some months ago we have been plagued with "fumes" in the common parts and entering our apartment during the early hours of the morning.
Some residents are suffering from noise from this flat in the same early hours.
The weekends are the worst and the effects of the fumes are quite serious.
We are pretty sure from what has been observed that the problem is due to drug use. We are anxious to resolve the problem as there are very real health implications for us. Can you please suggest a strategy to resolve this.
Our lease does protect us from "nuisance" and a number of residents/owners are complaining. The managing agents do nothing - in fact they are very obstructive in spite of the high service charges we pay. The police appear to be limited in the help that they offer. We would be very grateful for your advice.
ANSWER
It’s quite difficult to give you comprehensive advice, without seeing a copy of your lease. You are welcome to send me a copy via News On The Block and I will happy to advise you further.
That said, what I would be looking for in your lease, in addition to the ‘nuisance’ protections that you have identified, are covenants on the leaseholder such as subletting and permitted use clauses.
By way of example and because I have not read the relevant flat lease, it might be that the permitted use of the flat is a single private residence for the leaseholder only or it might be that the leaseholder requires consent for subletting and said consent has not been obtained. Further, the leaseholder might have to have lodged with your company and or your managing agent or solicitors a copy of the tenancy agreement and it is possible that agreement might have to have included certain covenants on the part of the sub tenant and in some cases, a lease may have required a sub tenant to enter in to a deed of covenant with the freeholder.
Your strategy must be to deal only with the leaseholder because that is the person with whom you have privity of contract, as the freeholder company. You are right to have contacted the police because, if you believe drugs are being used in the building, you have certain obligations under the misuse of drugs legislation but you should also write to the leaseholder in this regard because the leaseholder also has obligations in this respect.
With regard to your managing agents, you must remember that they are agents of your freehold company and they are obligated to act on your instructions. If they are not doing so, it might be time to review your agreement with them and to consider your options going forward.
Shmuli Simonis the Director of Legal Services at Integrity, the only law firm in England and Wales with a property management department regulated by ARMA.
