High-rise Buildings: Cladding
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A little insight to the new Communities Secretary James Brokenshire on Monday:
His father provided cladding to a high-rise in Greenwich, where Sir Peter Bottomley was a nearby MP.
Sir Peter said:
The Secretary of State has referred to his father, who was respected for his work in the Local Government Commission and the Audit Commission, and as chief executive of the London Borough of Greenwich, where, when I was there, he helped to get cladding for the Nightingale Vale tower block, enabling people to spend £5 a week to be warm rather than £30 a week to be cold. When the Secretary of State is bedded in, will he look at the problem of tenant/leaseholders in private blocks, where freeholders and others who own the freehold such as developers seem to fail to understand that tenants cannot be expected to pay the cost of recladding their buildings?
I am grateful to my hon. Friend for his comments about my father and his sense of focus and dedication as a public servant. My hon. Friend makes a point about the private sector and about landlords and those who own buildings seeking to pass on those costs. I would say clearly that the costs should not be passed on to leaseholders. They should be borne by the owners in the same way that local authorities and public sector buildings are maintaining that approach. I welcome the decision from one property developer, Barratt, to pay for remediation costs, and I hope that others will follow its lead.
Andy Slaughter, Labour MP for Hammersmith – who attended the APPG on leasehold on April 26 – also raised the issue.
” . . . I would say clearly that the costs should not be passed on to leaseholders. They should be borne by the owners in the same way that local authorities and public sector buildings are maintaining that approach. . . ”
Do local authorities have that approach? Does central government? Really? My experience is that they unilaterally dispose of the freehold, to any-old organisation or individual, and then fraudulently deny that they have any remaining responsibilities: Then the LGO, Trading Standards and Police all decline to investigate those frauds, and prosecutors require an investigation before they will prosecute. How very convenient that must be, surely, for central and local Government, as well as their chums in the large house-building corporations?
Mark Prisk MP, then Minister for Housing, letter to my MP dated 8th May 2013, refusing my request for intervention under section 44 of the Housing Act 1985:
“It is Government policy that the disposal of housing land should in the main be a decision for local authorities without any unnecessary intervention from central Government”. . . “the lease is unaffected by the sale of the freehold and the leaseholder retains the same rights they had beforehand”
Local authority Chief Solicitor, letter to me dated 22 October 2012:
“The Council’s obligations under the covenants in the leases came to an end on assignment of the freehold interest”
Local authority Borough Solicitor, letter to me dated 31 August 2011:
“In your letter you suggest that the Council remains bound by the lease terms on the basis of privity of contract” (I had not mentioned the word ‘privity’) . . “You will have to seek you own legal advice on this and on any action you propose against the Council, of course, but my understanding is that you are not the original lessee . . . and so would not benefit from any contractual obligation on the Council’s part.”
(Note the obvious threat to turn this into a court case if I wished to pursue it).
The trouble with these repeated statements from the Housing Ministry is that they were ambiguous and only HALF true: The leaseholder has the same rights, yes, but what remaining VALUE do those rights have, if the status of the new freeholder is totally unknown and unreliable? Why should the original developer local authority (OR ANY OTHER DEVELOPER) be let off the hook from its obligations, bought and paid for? The underlying law of contract maintains that the original Lessor is NOT off the hook for its contracted obligations (Stuart v Joy 1904, where both Lessor and Lessee had sold their interests).
This is how the widespread fraud works. It most certainly is NOT lawful: When either side of a lease contract is assigned, it has to follow the same rules that apply to any other contract, because agreements are matters of FACT, not law.
Leasehold tenure became more useful and popular in the Middle Ages for various reasons (e.g. due to complex legal problems with older forms of tenure, and following extension of the concept beyond 40 years, after much initial doubt, by analogy to other tenures). From 1400 or so onwards, for roughly three centuries, any assignment of either part of a lease required the FORMAL consent of the other party.
As recorded in Blackstone’s Commentaries CHAPTER THE NINETEENTH,
OF TITLE BY ALIENATION:
“And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seigneury without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprised of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighbouring clan. This consent of the vassal was expressed by what was called ‘attorning’, or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete: which was also an additional clog upon alienations.”
“But by degrees this feodal severity is worn off and experience hath shewn, that property best answers the purposes of civil life especially in commercial countries, when its transfer and circulation are totally free and unrestrained”
“The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last, they were made no longer necessary to complete the grant of conveyance, by statute 4 & 5 Ann. c.16; nor shall, by statute 11 Geo. II. c.19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord”.
The whole chapter describes how the freedom to buy and sell land did not exist, originally (land had to be granted or inherited); it describes how such freedoms developed; and how the need for formal consent by tenants became the final obstacle that had to be removed. The author and editor note variously that tenants were NOT TO SUFFER DAMAGE by any alienation made without their consent. Hence the present law: Transfers are allowed by statute, but do not (in theory) affect underlying contractual obligations to tenants (ALL of them) owed by the ORIGINAL grantor of their lease.
We should be glad to see that the new Sec of State James Brokenshire thinks local authorities take their responsibilities more seriously than private developers. We could rejoice even more if his beliefs became a reality. In my experience, issues of fraud are fudged in ways that somehow just happen to serve government financial interests. How then can frauds by private operators be dealt with any more effectively?