ll the lessees of a conversion have the Freehold and Right to Manage of a block of 6 small flats in an old Tudor style building, and one of the tenants has installed a TV sky satellite dish on the front wall of the building without permission. It is very unsightly and in mid-August we wrote to him nicely explaining that he was in breach of his lease and requested that he remove the dish by the end of September. That deadline passed without any communication or action, the dish remained in place, so after another month we wrote advising that we will remove it ourselves and charge him for the cost of making good the brickwork.
With that, he promptly wrote a threatening letter back saying if even one minute of his Sky Television was lost " our lives wouldn't be worth living ". Along with calling us discriminatory due to his race, which of course has nothing to do with this at all. He also denied installing the dish, saying it was put up by the previous tenants which we know is untrue and have photographic evidence to prove that it was put up during his tenancy.
What do you suggest we do? There is a legitimate fear of any reprisal if we do cut the wires and remove the dish because he can look up the Freeholders' names and addresses ANSWER Before any further action is taken it will be necessary to identify the basis upon which any further action can be taken. This is because the facts of this matter, subject to the contents of the relevant lease, may involve a breach of lease or trespass by the lessee in question and possibly a breach of local planning control. From the description provided, it is noted that the satellite dish in question is fixed to the front wall of the building. Presumably this is an external wall. Therefore, it is recommended that the first step should be to examine the relevant lease to see whether the wall in question is demised to the lessee in question or whether it is retained by the landlord. It is common for leases of buildings containing flats to demise the internal walls to the relevant lessee but to provide that the external walls are retained by the landlord. This is a significant point to establish as whether the wall is demised or retained will dictate the potential remedies available to the landlord. If the wall in question is retained by the landlord, it is likely that the lessee has and is continuing to commit a trespass by fixing the satellite dish to the landlord’s retained wall without permission to do so. If a trespass can be established, the landlord could seek a Court order (referred to as an injunction) compelling the lessee to remove the satellite dish and to make good any damage to the brickwork. However, injunctions are granted at the Court’s discretion and will not be granted if the trespass is trivial, the grant of an injunction would be oppressive or if damages (i.e. compensation) would be a sufficient remedy. If the wall in question is demised to the lessee, subject to the covenants in the lease, it is likely that the lessee has breached the lease by fixing the satellite dish to the said wall. Therefore, it is essential to examine the relevant lease to identify the relevant clause alleged to have been breached. This may be a covenant restricting alterations that extend to “additions, fixtures or fittings” to the demised premises or a specific covenant prohibiting the fixing of satellite dishes to the demised premises. If a breach of lease can be established, the remedies available to the landlord include an injunction (as discussed above) or forfeiture of the lease. However, forfeiture is only available if the lease contains a clause enabling the landlord to take forfeiture action and the correct procedure is followed. Forfeiture may be considered a last resort but provides the landlord with an effective method of enforcing the covenants in the lease as failure to do so could result in the lessee losing possession of their property. In order to take forfeiture action, given that the lease is a long residential lease, it would first be necessary to obtain a determination that the lease has been breached in the manner alleged. If such a determination is obtained, the landlord would then be able to serve a notice (referred to as a Section 146 Notice) specifying how the breach is to be rectified (in this matter, the removal of the satellite dish and repair of any damaged brickwork) and in default of the same notice that forfeiture proceedings for possession of the property will be commenced if the terms of the notice are not satisfied within the timeframe given. Whether the appropriate course of action is trespass or breach of lease, it is not recommended that you simply cut the wires and remove the satellite dish yourself without the benefit and safety of a Court order permitting the same. There is an inherent risk in forcefully removing items that belong to another as it exposes the landlord to potential action by the lessee in question for damage to the item. Whilst the potential delay and cost of obtaining the appropriate Court order may deter you from pursuing such action, it is considered that the benefits of the same outweigh the risks of simply removing the dish yourself. It is also considered that seeking the appropriate Court order will provide the landlord with a legitimate foundation for further action and may assist in addressing any concern or anxiety as to the lessee’s response if the satellite dish was simply removed without such an order. If the appropriate action is a breach of lease, there may be a costs provision in the lease that entitles the landlord to recover its legal costs in pursing the lessee for breach. If the appropriate action is trespass, the landlord could seek to recover its legal costs from the lessee if successful. In any event, sufficient evidence must be gathered in order to establish that the lessee has committed a trespass or breach of lease (as applicable). The burden of proof is on the landlord to show that on the balance of probability, it is more likely than not that the lessee has and is continuing to commit a trespass or breached the relevant covenants in the lease (as applicable). For this purpose it is noted that photographic evidence has been obtained that supports the contention that the lessee in question is responsible for the satellite dish as opposed to a previous owner. Finally, it is noted that the building is an old Tudor style building and, as indicated above, there may be a possible breach of local planning control if the building is listed. Therefore, you may consider it appropriate contacting the local planning authority to investigate this further. The above are recommendations only and subject to the information provided. In any event it is recommended that you obtain a full copy of the relevant lease from the Land Registry (available online) and seek legal advice accordingly so that any potential action against the lessee in question is not prejudiced by any further action that you may take without the benefit of legal advice. Dafydd Jones, JB Leitch Solicitors
