Memorandum
[Course]
[Instructor]
[Institution]
[Date]
To: Jack
From: insert law firm name
Re: Jack case – Property law dispute case
Date: 21st March 2017
Question presented
Where the title deed is silent about the “burdens” of property owners with regards to maintenance, repair and management of a flat, Can the Tenement Management Scheme introduced by the ‘The Tenements Act 2004’ be applied to solve problems relating to entitlement to make and prevent any further changes, stop sale of a joint owned flat?
Short answer
Yes. Victor was entitled to carry out changes to the partnership owned flat in a tenement under the ‘Tenement Management Scheme’ statute. Victor does not have the rights to stop the sale of the flat in the event that Jack wants to move out because they are not married, but the rights will be exercised fully in the event that they get married as they had earlier planned.
Statement of Facts
Jack and Victor are partners who have put together their savings and subsequently purchased a flat in Glasgow. The property bought ‘flat’ is part of tenement block that contains five other flats. In the tenement block, every flat is allocated a paved garden area in the front and grass garden area at the back. Similarly, each of the six flats within the tenement block has ‘pro indiviso’ allocation of the close and loft spaces.
The newly purchased flat title deed is silent, and we have not been informed about the “burdens” of the two partners concerning the management and maintenance of the property. However, the state of the flat currently is one that requires renovations. In this regard, both Jack and Victor have mutually agreed to start the renovation work basically by gentle DIY tasks.
One day, Jack upon his return home, he has found out that has undertaken significant changes to their flat at that time he was away from home. For instance, Victor has wallpapered the living room in a lurid green color and replaced the traditional and long surviving single-pane windows with bulky double glazing ones. Additionally, upon moving into the kitchen, Jack stopped Victor from ripping out the original tiles from the walls, a type of which is no longer available in the market. According to Victor, he had planned to replace the old tiles with new woodchip. It is clear from his intended action that he was likely to undertake improvements as opposed to replacements as he had done in the living room. Subsequently, all the replacements that he had already established in the flat had not been approved by Jack. This makes Jack distraught concerning everything his partner had done.
Upon arrival, Jack explains to Victor that he was away for a weekend with his friend. Also, he clearly says that he opted to be away from the flat because the weather was bad and this made him uncomfortable during the high winds. Particularly, he found trouble sleeping as the high winds caused the windows to shake loudly. This discomfort was the main reason he chose to be away during the weekend from his friend.
Jack is categorical that he is particularly upset with Victor because they were planning to be married very soon. As a result, Jack is not sure of his commitment to proceed with the marriage because he has decided to move out of the flat. On his part, Victor has strongly refused to consider selling up the flat. Their positions have left them in a dilemma of what their next cause of action should be.
Discussion
The flat that was jointly bought through a contribution of Jack and Victor is controlled by the ‘Tenements Act.’ In this particular act, the underlying principle is that it is mandatory for all tenements to have a scheme for management and maintenance (Citizens Advice Scotland). The scheme governing an individual scheme contains; rules set out in the title deed and the tenement management scheme.
Many tenements have detailed set out rules in their title deeds that form the basis of management and maintenance issues (Title Conditions (Scotland) Act 2003asp 9). However, the ‘Tenement Act’ does not render these set rules obsolete (Scottish Government 2011). The flat purchased by Jack and Victor from a tenement should have its own title deed. This is because developers and owners of flats in tenements have the right to draw up their individual title deeds especially in cases of partnerships as above. “The new law in the Tenements Act is mainly default law – it will only apply if the title deeds do not make other arrangements or if they are defective”.
The case brought forward for prosecution is whether Jack has a right to stop the renovations being done by Victor. Secondly, the case has to determine whether Victor has a right to stop the sale of the property. Older tenements lack a comprehensive management scheme that has express instructions and guidance on how efficient management and regular maintenance can be undertaken in a tenement. Based on the facts presented it is pretty obvious that the flat is older because it requires renovations. On the other hand, there is an extent to which a tenement management scheme can provide the cause of maintenance costs but fail to address how collective decisions can be made concerning any work. Based on the common law, all partners to such a property were required to have agreed before any act of repair is undertaken. As such, it was difficult to agree, and repairs could take long or delayed altogether. It is likely that the case of Jack and Victor demonstrates a situation of frustrated or delayed repair work.
The drafting of the Tenement Act was simply a breakthrough to ensure that in case of disputes concerning management and repairs can be easily resolved. In reality, the ‘Tenement Management Scheme’ is a default law that only serves to provide proper regulations on maintenance and management for all tenements in Scotland. “If existing tenements have defective title deeds or if their title deeds are silent on a particular matter, the rules of the Tenement Management Scheme will be applied to them.” Since there lacks a clear set-out regulations in the Title deed covering maintenance of the flats the “Tenement Management Scheme” will be applied in full.
The ‘Tenement Act’ under Rule 1.5 provides a definition of “maintenance” that equals the term to repairs that are rebuilding and replacing. Alteration, demolition and improvement do not form part of “maintenance.” However, under this particular rule, it is permissible to accept any form of improvement that allows modernizing through replace old materials with existing new materials. However, any form of improvement that is not incidental to maintenance and repair, the provisions of the common law will be applied, and a unanimous agreement of the partners is required for any work to be undertaken.
Rule two is another important legal framework that can be used to determine the case presented by Jack. On the procedure of making decisions, any person to a partnership can be allowed to make a decision is that flat is owned by two or more people. Further, it states that “If however, the owners disagree on how the vote is to be cast, then no vote is counted for that flat unless it is cast by an owner or owners who own more than a half share of the flat”
Was Victor entitled to carry out the changes?
The background of the case has failed to provide the contents of the title deed in relating to how management and maintenance issues can be undertaken. It remains that the Tenement Act’ can be applied in this situation through ‘Tenement Management Scheme’ statute. The background reveals that both Victor and Jack had agreed to make several renovations but not what was done by Victor. Based on rule 2 of the Tenement Act’ the decision to make the renovations would require a simple majority vote of the partners. Victor alone had that simple majority and therefore was entitled to carry out the changes.
Is Jack able to prevent him from making any more changes to the property? If so, how?
The underlying question of Jack preventing any form of changes to the flats can be provided from the rule 1 of the act on definitions. Under the definition of ‘maintenance’ alteration, demolition and improvement are not permissible. However, replacing old parts with new ones is permissible under this rule. What Victor had done to the living room was not maintenance, but improvement. This is because he had changed completely the wallpaper from its existing colour to lurid green. Therefore, Jack has a legal right to stop Victor from making more changes through filing a complaint under the ‘Tenement Act’ and rule 1.4.
Can Victor stop the sale of the flat if Jack wants to move out? Are there any remedies available?
Victor can stop the sale of the flat because he is a partner in that property who enjoys 50% rights. In the event that Jack wants to move out, he has to convince Victor to agree to sell the property or provide evidence that warrants his action to move out. According to the property law in Scotland, people who live together had been given authority to make financial claims in extra ordinary conditions. The only available remedy for Jack to stop a financial claim because of his planned divorce is through convincing Victor to write an agreement then file suit. The written agreement should state that Victor has no rights to file any financial claim concerning the flat.
Would it make any difference if Jack and Victor were to get married?”
In the event that Jack and Victor are married, everything will change. Under the property law, both Victor and Jack can file a financial claim to each other. This indicates that Victor can stop the sale of the flat and Jack cannot undertake any decision of the house without consulting the other party.
Part B
Memorandum
To: partner’s name
From: insert your name
Re: Navid case – Property law dispute case
Date: 21st March 2017
Question presented
Where there is not legal document as “lease” for and landlord and tenant, can the tenant withhold paying his rent obligation because of any damage or loss caused to his products because of the condition of the premise?
Short answer
No. every tenant has an express obligation to pay rent in due dates. Navid has failed to pay his rent for the last six months citing the damage that has resulted from water entering to his store through the roof. Under the contract of leases in Scotland, it is a responsibility of the Tenant to pay rent, and the landlord has to repair the premise at the request of the tenant. This has not happened in the case above, but only a demand notice has been drafted instead.
Statement of facts
Navid has leased a property in the Craiglang area of Glasgow in Scotland. His landlord who is also the owner of the property is called Isa. They both agreed that Navid obligation is to pay £1000 per month to occupy the premise. Navid and Isa are good friends for a longtime, but the latter memory is going to the extent that he does not remember any form of a written lease or oral agreement he undertook with the former.
Navid uses the premise to operate a convenience store that sells a wide variety of produce. It has come to the notice of Navid that his stock in the stock room has been damaged by water ingress from the roof top. As part of settling the problem, Navid has asked for a payment of £5,000 to cover the cost of damages. On the part of Isa, he observes that this is only a diversionary tactic of his tenant to fail in paying rent for 6months.
Discussion
A lease is a contract between two people that grants one of the party permission to use a premise or property in exchange for payment of rent. Navid and Isa had a lease because payment of rent which is a common aspect of a lease was agreed to £1000 payment monthly. After a lease contract has been made, the lessee has absolute rights of possession in using the property. Therefore, at the time of a lease, the landlord does not hold any natural possession of the property. It means that tenants have to ensure the maintenance of the property at such a time the lease is on course to avoid possession by the owners.
It is a component of a lease that rent is paid as required either monthly or quarterly. In the case of Navid, rent was expected to be paid monthly. However, it is legal for kind payments of rent in respect to a certain service that might have been given.
It is expected that a lease has to properly set out the rights and obligations of both parties. For the case of Navid and Isa we are not told of the existence of any contents of the lease contract. In such a situation common law can be applied to solve a dispute. A lease contract is regarded as a ‘norminate contract’ that has implied terms in law. As such, to avoid any exclusion in the application of implied terms, proof of an existing contrary provision is required Rent. In the case above, Navid has not provided any contrary provision of the lease. For example, possession is one of the implied terms that compels the landlord to give the tenant natural possession and do not interfere with his or her activities. Further, under this implied term, the tenant is required to enter into possession and use of the premise. In our case, the store was under the possession of Navid when the produce was destroyed and should have complained to the landlord first to repay the problem, but he failed to do so.
Lease contracts may contain the remedies available to both parties concerning specific implement and interdict. According to the statute on ‘obligations ad factum praestandum’ where a landlord is supposed to carry out repairs, specific implement is an appropriate remedy. However, this can only be awarded in a court of law in a situation where the obligation is sufficiently clear and accurate. In the case of Navid, the situation is not clear and precise as required by law.
What are the essential elements for the constitution of a valid lease in Scotland? Does the arrangement between Navid and Isa constitute a valid lease?
A lease is a contract document between two people that gives one party authority to use a certain premise whilst the other party paying rent. In Scotland, a valid lease must contain four cardinal elements to be recognized as parties, property, rent and duration. The contract between Navid and Isa is not a valid Lease because there is no duration and property explained in the contract. It only mentions the parties and the expected monthly rent that is payable.
Assuming there is a valid lease, what are the obligations of a landlord, such as Isa, and the obligations of a tenant, such as Navid?
In the event that the lease between Navid and Isa is valid, every party to the lease has defined obligations. Isa as the landlord has the obligation of providing the premise and allow natural access to the tenant. Secondly, he is required to make repairs and maintenance of the premise at the request of the tenant . Also, he can give notice to the tenant to move out or make renovations or in case of any obligation. On his part, Navid has an express obligation to pay rent on the due date, access the premise as agreed and inspect the premise regularly to identify any problem that requires maintenance.
Are there grounds for either Navid or Isa to bring the lease to an end based on the alleged (in) actions of the other? What other remedies may they each have against the other?”
The grounds provided by the Navid will automatically bring the lease to an end. Navid has defied his obligation of paying rent, and this is a strong ground for a valid lease to collapse or be terminated. On the other hand, failure by Isa to repair the store can also be a reason for the lease to terminate the lease because that his obligation. The available remedy that both parties have is to file a suite of breach of contract based on the law of contract statute.
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