Q. My solicitors say the lease appears to be defective, because ….
…. there are no landlord’s covenants to repair the structure of the building.
A. It sounds like this is one of the leases granted under ‘the right to buy’ legislation, contained in the Housing Act 1980 and subsequent amending or consolidating Acts. These Acts imply a ‘covenant’ (an obligation) on the landlord to provide various services, so that the covenant does not have to be typed out in the lease itself. For example, the Housing Act 1985, Schedule 6 implies the following covenant on the part of the landlord: Paragraph 14(2): “ There are implied covenants by the landlord … to keep in repair the structure and exterior of the dwelling-house and of the building in which it is situated (including drains, gutters and external pipes) and to make good any defect affecting that structure”. .
…. there are no Landlord’s covenants to reinstate the building in the event of destruction by fire.
A. This is a similar situation to the one described in the previous answer. The covenant is implied by the Housing Act. Paragraph 14(3) of the Housing Act 1985, Schedule 6 says: “ There are implied covenants by the landlord … to “rebuild or reinstate the dwelling-house and the building in which it is situated in the case of destruction or damage by fire, tempest, flood or any other cause against the risk of which it is normal practice to insure”.
…. the lease does not contain any appurtenant rights of shelter and protection, or right of entry onto other parts of the Estate to carry out repairs.
A. The lease may be one granted under the ‘right to buy’ legislation, in which case the necessary provisions are implied by the Housing Act 1980 or 1985.
…. there is no provision for mutual enforceabilty of covenants or for the landlord to enforce them.
A. The Council of Mortgage Lenders Handbook – which is the ‘Bible’ for what a lease must contain – says that mutual enforceability of covenants is only necessary where the responsibility for insurance, maintenance and repair of common services is that of one or more tenants. In the Barbican Estate this responsibility is that of the landlord, the City. There is therefore no need for a landlord’s covenant to enforce other tenants’ covenants. If it is not clear in the lease that the landlord is responsible for them, it may be because the lease you are buying was granted pursuant to the ‘right to buy’ legislation, in which case the obligtion is implied by the The Housing Acts 1980 or 1985 instead of being typed into the lease itself. For example, paragraph 14 of Part III of Schedule 6 of the Housing Act 1985 implies a covenant on the part of the landlord “to keep in repair the structure and exterior of the dwelling house and of the building in which it is situated…”
Q. Who insures the flat?
A. The Corporation arranges buildings insurance for the buildings on the estate, including all the flats. Check with the Barbican Estate Office for the current terms of the buildings insurance policy. You need your own separate contents insurance against theft of your contents, or any damage you cause to other flats – if you leave your bath running, for example.
Q. How are rent and service charges split between seller and buyer at completion?
A. It’s complicated. Rent is paid in advance, service charges in arrears, and for different periods.
Q. I cannot see an express right in the lease for the flat owner to have access to the gardens.
A.There are two ‘residents’ gardens’, Thomas More Garden and Speed Garden, which are linked by the lake. These gardens are reserved for Barbican residents only, and residents’ keys give access to the gardens. But no one has an actual legal right set out in their leases to use the gardens. The gardens and lakes are the areas coloured green on the lease location plan.
Q. The balcony of the flat is not shown as part of the flat on the lease plan of the Land Registry entries. It is outside the pink colouring or red edging which denotes ownership.
A. What you own is not limited to what is edged red or coloured pink on the lease plan. That is only part of the story. If there is a balcony at the flat, it is included in the premises demised by the wording of (usually) clause 2 of the lease which says that any balcony is included in the demised premises. Use of the balcony is subject to paragraph 3 in the Second Schedule. The lessee’s obligations in respect of the repair of the balcony can be inferred from (usually) clause 4(5) of the Lease.
When the Land Registry registered the lease, they probably used the lease plan to show the position of the premises on the Land Registry plan, and included a short description of the premises in the Property Register. So the Land Registry plan also won’t show any balcony, and it won’t be specifically referred to in the Property Register. This is the case with most registered leases: it is the lease not the Land Register itself which defines the extent of the premises in detail. You need to read the lease to find the detail of what is included, which often includes references to balconies (if any) which aren’t marked on plans, and precise divisions between walls and floors, which also have to depend on the more detailed wording of the lease, not on the Land Registry’s very general description.
It should be noted, however, that this only applies to balconies or any other item described by the lease as included in the premises. There may be terraces or garden areas outside a flat which are not included in the ownership of the lease, because they are not referred to directly, but which are used in practice solely by the flat owner. An example would be an area outside a flat which the the City regards as a fire escape area. In such a case, you won’t own it, but you may have exclusive use of the area in practice. This applies, for example, to some front gardens of Andrewes House.
Q. There’s a clause in the lease saying I have to keep the flat carpeted. Can I lay wooden floors?
A. Strictly, no. The Barbican Estate Office won’t grant formal permission. However, they have not been known to object (as far as I know). They just make the point that if you don’t use adequate sound-proofing and subsequently there are complaints from neighbours, then they reserve the right to make you lay carpet. They do enforce that if there are noise problems. The concrete walls naturally reverberate, and with a wooden floor a Barbican flat is not that much different from a squash court in my opinion (okay, with a kitchen and a bathroom) and unless you have some carpet you won’t be able to hold a conversation without a ringing tone in your ears. (As you may have guessed, I am a carpet lover.)
Q. What major works are expected to take place in my block and how much will they cost?
A. The City Corporation provides details of anticipated expenditure with estimated costs. These can be obtained from the Barbican Estate Office.
Q. Is there a sinking fund?
A. No. But with some large expenses, the Barbican may agree instalment payments to soften the blow, and you should speak to the Barbican Estate Office. If your lease was a ‘right to buy’ lease granted under one of the Housing Acts prior to 1995, it may qualify for a contribution to works from the Corporation.
Q. Can I take over my sellers’ parking space or baggage store when I become owner of the flat?
A. If the sellers own their parking space or baggage store outright, then they can sell it to you. But bear in mind they are also able to sell it back to the City. So don’t just assume it’s included in your sale. Make sure it’s specifically included in the sale contract.
If the sellers only rent the space or store, then it goes back to the Corporation of London when the sellers move out; then you have to go on the waiting list for one.
Q. I don’t like melamine and I want to gut the kitchen. I know the Barbican’s a listed building. Does that mean I’m doomed to keep a ’70s kitchen forever?
A. No, people are routinely changing their kitchens and bathrooms. But it is a little bit complicated. Some works require listed building consent, some are always forbidden, some require district surveyor’s approval, and they all require landlord’s consent. You should check our detailed guide of what alterations you can do, or not do.
Q. I don’t like the Garchey in the kitchen. Can I get a builder in to remove it?
A. You cannot remove the Garchey in your flat without permission. Permission may not be given nowadays because so many have already been removed that any more removals may have an adverse effect on the communal drainage system. If it was done in the past, it needed the Barbican Management’s permission at the time, and you need to see the permission so that you can pass it on to your buyers in turn. Learn more about it by clicking here.
Q. Can I let my flat?
A. Yes, but it must be a residential letting (not business) and for a minimum period of at least 90 days. You must register a copy of the tenancy agreement once it has been signed and pay a fee to the City’s Comptroller and City Solicitor for registering it.
The right to grant lettings of less than 90 days requires planning permission. So, unless you have planning permission, (highly unlikely!) holiday lets and short term lets are not allowed.