The lazy solicitor, the lease, and the very
lazy solicitor, or are they just too busy to
deal with your properly?
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Solicitors in action, or what we would refer to as surveyors as a very onerous lease, compared with what we typically see
We recently came across a very strange situation, where the Landlord is a solicitor and also acting for himself as a solicitor on the Lease, and has put together (cobbled together is the expression the other solicitor used) what he referred to as a commercial lease, or what you would refer to as a very onerous lease.
The lease just never seems to be ready to view and the completion date on the property gets closer
He avoided passing on a copy of the Lease as long as possible (a situation that we have come across quite a few times over the years and a practice which we think is unethical). In fact it came to the stage where we actually went and did the Schedule of Condition without having the lease, which is something we would rarely recommend. So it was only then, after much negotiation, that we managed to get the solicitor/landlord to say he was sending us a copy of the lease, and as we write this we still haven't got it! However, we did discover by talking to him that it was a full repairing lease, requiring the property to be put in good order and to be kept in good order at all times; in our opinion very onerous clauses.
The lease gives you responsibility for the whole building
Also, the lock up shop had a third responsibility for the building as a whole. Some of you may say we know about these things and that's not particularly unusual. We would say that the unusual part about this situation is that the Tenant was not advised, in fact we would go so far as to say they were misled, with regard to the potential future liability. We have also come across situations where the shop, being the only commercial part of the property, with the rest perhaps being either storage or residential, has actually had a responsibility above its percentage floor area.
The Tenant's very lazy solicitor
Unfortunately, in this situation the Tenant's solicitor has been very lazy and not really recommended any amendments to the Lease.
The first amendment we would always recommend is that a Schedule of Condition is appended to the Lease. The Landlord's solicitor, when asked about this, said the property was in excellent condition, which is the answer you would expect from the Landlord's solicitor. The property that we, the surveyors, looked at certainly was not in excellent condition and we would comment that surveyors are happy to leave solicitors to deal with the law, why aren't solicitors happy to let surveyors deal with property?
We have carried out a Schedule of Condition that identified everything from the rusting fire escape to the chimney that's in need of repair and which would cost a fair amount of money in scaffolding just to view it, to the dampness that's caused the cellar floor to become uneven and to need replacing.
Very busy production line solicitors
Unfortunately, today solicitors are often on a production line and working very quickly what they do and they just don't have the time, effort or energy to spot and pursue everything. You really, therefore, need to get an understanding of the sort of thing that you should be looking for so you can ask good quality questions to your solicitor to make them take that extra bit of care with your lease.
Our guide to asking your solicitor good quality questions
The areas of the lease that the surveyors are interested in and the ones that we can help you ask good questions to your solicitor are the four R's':
Your lease will have a clause within it requiring you to redecorate to a certain standard, usually every three or five years and usually when you come to hand the property back, be it at a break clause or a yield up clause. You need to check what is included with this redecoration clause and just see how relevant the various items are, as often people drafting the leases have never seen the property. We would also add that if the property forms part of the marketing of your business, for example a shop on the high street, or an office with a high street location, then redecoration should be every three years. If it is not, for example an industrial unit within a business park, then five years is more realistic (this of course depends upon the location as well) and these are standard clauses.
Your newly leased property should be redecorated
This means, to spell it out, that when you take on a new lease the last tenant would have had a similar clause to redecorate when they exited the premises. Therefore, you should be taking on a premises that is newly decorated.
Every lease will have a repair clause. An example is one that we gave earlier; it was a full repairing and insuring lease, known as an FRI lease, which is very common.
The other lease that we sometimes come across is redecoration only. This is relatively rare.
It's all about the words in the lease, not the standard that you get the property in
It's the words that describe the quality of the repair that are important, such as to keep in good repair, or to put and keep in good repair and this is the sort of thing that your solicitor should be advising you on.
This is a clause frequently used where tenants carry out alterations. You should first of all make sure that you are not taking on some tenant alteration that the existing landlords are happy to accept but that you may not be. This can be done by looking at any lease drawings that come with the lease, showing the layout, as it can prove costly to remove, say, a mezzanine floor within an industrial building, particularly when you are trying to leave and set up in a new building.
These items are particularly contentious at the end of a lease when a monetary settlement only is what needs to be agreed between the landlord and tenant.
A relatively onerous clause, but nevertheless standard, which will mean you are responsible for keeping the property up to the latest fire regulations, etc.
Experienced Businesspeople Understand the importance of a Schedule of Condition being appended to a Lease
How a surveyor can help you get more from your solicitor
Whilst we are not experts on the legal side we do see a lot of leases in what we do and we come across the same issues time and time again. We can advise you of these in a plain English, common sense manner and perhaps alert you to something that a solicitor has missed or been lazy about.
If you truly do want an independent expert opinion from a surveyor with regard to landlord and tenant issues, leases, lease clauses, building surveys, structural surveys, structural reports, engineers reports, specific defects report, dilapidations, home buyers reports or any other property matters please contact 0800 298 5424 for a surveyor to give you a call back.
If you have a commercial property, be it leasehold or freehold, then you may wish to look at our Dilapidations Website at www.DilapsHelp.com and for Disputes go to our Disputes Help site www.DisputesHelp.com .
We hope you found the article of use and if you have any experiences that you feel should be added to this article that would benefit others, or you feel that some of the information that we have put is wrong then please do not hesitate to contact us (we are only human).
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