Quiet enjoyment

Goldmile Properties Ltd v. Lechouritis

What steps must landlords lake, in deference to their covenants of quiet enjoyment, when complying with their repairing obligations under a lease? Is it enough for a landlord to lake all reasonable precautions – or is the landlord required to take all possible precautions – to avoid disturbing its tenant?

The landlord brought in contractors to repair and clean the exterior of a building, which was lei as a restaurant. The contractors erected scaffolding and fixed sheeting to the exterior of the premises. The interior of the premises became dusty and dark, and die restaurant appeared closed.

The Appeal Court said that, where the provisions of any contract come into conflict, they are to be interpreted and applied to give proper effect, where possible, to each. The landlord's obligation to keep the building in repair had to co-exist with the tenant's right to quiet enjoyment and vice versa. Neither obligation should take priority over the other.

It would have been possible to restrict the work to the days on which the restaurant was closed, hut this would have been costly and impractical. The landlord had sent the tenant a copy of the estimate for, and had agreed to spread die cost of, the work. It had also postponed the start of the work to avoid interfering with the tenant's busiest period and had arranged the work to meet the tenant's requirements in so far as it could.

The landlord was under an obligation to take all reasonable steps – but not nil possible precautions - to avoid disturbing the tenant, and had done so.

Exercise 22. Find words or phrases in the above text which match these definitions.

1. An agreement that the lessee can use the property in peace without being disturbed.

c … of q …e …

2. Something done in advance to prevent harm.

p …

3. Someone who enters into an agreement to perform a certain service or provide a certain product; (here) a company or trader which agrees to provide construction work.

c …

4. The expected cost of work to be done.

e …

5. To put off or delay until a later time.

p …

SPEAKING 2: CASE DISCUSSION

Exercise 23. Discuss these questions in small groups.

1. What is the difference between reasonable precautions and possible precautions in the present case?

2. The Court reasoned that 'where the provisions of any contract come into conflict, they are to be interpreted and applied to give proper effect, where possible, to each'. How is this statement to be understood?

3. Do you agree with the Court's ruling in this case?

4. What do you think the outcome of such a case would be in your jurisdiction?

LISTENING 2: BUYING A HOUSE IN SPAIN

Lawyers are often involved in all stages of the sale and purchase of real property. These stages include drafting, reviewing and negotiating the contract of sale, handling payment, as well as preparing and filing the documents required to close on the property.

When the purchase involves real property in another country, it will be necessary to obtain the help of a lawyer who is well acquainted with the procedures and documents required in that country.

Exercise 24. What documents are required for the sale of real property in your country? Do many foreigners buy property in your country?

Exercise 25. Listen to the following interview between a lawyer (Ms Blackwell) and her client (Mr Watson), who intends to buy a house in Spain.

Ms Blackwell: Hello. Mr Watson, very good to see you.

Mr Watson: Hello, good to see you, loo, Ms Blackwell.

Ms Blackwell: Please have a seat. Coffee, tea?

Mr Wfatson: No, no thank you. I'm fine.

Ms Blackwell: Great. Well, why don't we get down lo business, then? I've prepared everything you asked me for - the house looks beautiful, by the way.

Mr Watson: Yes. it's lovely, isn't It?

Ms Blackwell: Right. Why don't I talk you through the process, tell you what has lo be done so you get an idea of the process as a whole and the costs you'll have, so you know what to expect.

Mr Watson: OK, fine.

Ms Blackwell: Well, buying a home in Spain is really not that complicated, especially if you have the help of a Spanish lawyer and you basically know what you're doing. Señor Martinez is very reliable, his English is very good and he's quite experienced in this kind of transaction. I've printed out an email from him – here you are ~ and as you can see, he's waiting for you lo contact him.

Mr Watson: OK. What about his fee, if I might ask?

Ms Blackwell: He told me that he charges 1,000 euros tor assistance throughout the entire process.

Mr Watson: Thai's fine – after all. I don't want any unpleasant surprises.

Ms Blackwell: Right. Well, first of all, Señor Martínez will draw UP a power of attorney, which you'll have to have made official at the office of a notary – Señor Martinez will officially translate the document for you in front of the notary.

Mr Watson: Why do I need a power of attorney?

Ms Blackwell: That's so your solicitor can carry out arty necessary steps when you're back in England.

Mr Watson: Ah, I see.

Ms Blackwell: Then the two of you'll go to the National Police – which is called the Policía Nacional In Spanish. I believe – to get a fiscal number, referred to as an NIE. The next step is to set up a bank account for transferring all funds. You'll need to have 1% of the purchase price of the house in cash. And. of course, you'll want to talk about financing the house with the bank. I'm sure that Señor Martínez will be able to recommend a good local bank.

Mr Watson: Right. What about the contract?

Ms Blackwell: Señor Martinez will draw up a contract for you in both English and Spanish slating the terms of the sale. It'll also set forth the timeframe of the house purchase and include things like deposit payable, furniture included and so on. Then there'll be the official signing of this contract by you and the Seller, with both Señor Martinez and the estate agent present as well. At this point, you'll hand over the 1% lo the Seller.

Mr Watson: OK. Could I send you a copy of the contract for your review?

Ms Blackwell: Of course – I was going to suggest that.

Mr Watson: Good. What's next?

Ms Blackwell: Well. I suggest you then return home and arrange for the rest of the deposit – that will be 9% of the purchase price – lo be transferred to your bank account in Spam. Señor Martinez will be taking care of further paperwork, and when he's sure everything is in order, he’ll withdraw the money from your account and hand il over to the Seller. Señor Martinez can then sign the relevant part of the contract. Once the rest of the money's been transferred to your Spanish account, the final documents will be signed on the completion date.

Mr Watson: Do I have lo be there for the signing?

Ms Blackwell: No. Señor Martínez will represent you. and he. the Seller and the estate agent - as well as a representative of the bank if you've arranged a mortgage - will undertake the signing in the presence of a notary. Then the money and the keys will be exchanged, and the house is yours!

Mr Watson: Sounds great!

1. Who is Señor Martínez?

2. Tick the steps that must be followed to buy a house in Spain.

a) Draw up power of attorney □

b) Submit financial history of buyer □

c) Apply for fiscal number □

d) Negotiate agent's commission □

e) Set up bank account □

f) Arrange financing □

g) Inspect premises □

h) Sign contract □

i) Hand over 1% of the purchase price □

j) Hand over remaining deposit (9% of purchase price) □

k) Sign final documents □

Exercise 26. Decide whether these statements are true or false.

1. A notary will translate the power of attorney document.

2. A power of attorney allows the client's Spanish lawyer to complete necessary paperwork when the client is not in Spain.

3. The contract for the sale of the house will be written in both English and Spanish.

4. The client's English lawyer does not want to look at the contract, since Señor Martínez will be drawing it up and has extensive experience with such contracts.

5. The client must be present for the final signing so that he can hand over the rest of the deposit.

READING 5: REFERENCE EMAIL

In the previous listening exercise. Ms Blackwell discusses the steps to be taken by Mr Watson and his Spanish solicitor. Señor Martinez, when purchasing a house in Spain. The following email, written by Señor Martínez, is referred to by Ms Blackwell in the dialogue. In the email. Señor Martinez provides an account of his professional experience as a lawyer.

Exercise 27. According to the email, what is Señor Martinez's specific area of expertise? What else qualifies Señor Martínez to help Mr Watson?

to: T. Blackwell

from: M. Marlinez

Subject: Spanish property purchase

Dear Ms Blackwell

Thank you for your email of 15 May, in which you request my services as legal counsel for your client, Mr Watson.

Allow me to provide some information regarding my professional background. As a Spanish lawyer specialising in the sale of real property, I have 15 years' experience in assisting buyers from the UK in purchasing holiday or retirement homes in the Costa del Sol region. During this time, I have provided my services for the successful completion of hundreds of real-estate transactions. I have not only accompanied my clients through all of the steps involved in the process of buying a home in Spain, from drawing up an initial pre­sale contract to final completion, but have also gained particular expertise in negotiating the terms of sale of real property. May I also add that I have studied law in both Spain and England, and therefore possess knowledge of the legal systems of both countries. I also speak English fluently.

I would appreciate it very much if you would inform Mr Watson that I would be happy to assist him in purchasing a home. Please could you forward this email to him and ask him to contact me at his convenience.

Thank you for your assistance in this matter.

Yours sincerely

Mateo Martínez

WRITING 2: SUMMARISING AND REQUESTING

Exercise 28. The following phrases can be used for making requests:

Could you please provide me with ...

Would you mind sending me ...

I'd appreciate your sending me ...

Read Señor Martinez's email again and find two more phrases to add to the list.

Exercise 29. The English lawyer. Ms Blackwell. wants to respond to the email and to inform Señor Martínez of the matters she has discussed with their mutual client. Write her email to Señor Martínez in which you should:

− thank him for his email;

− state the reason for writing;

− briefly summarise the content of the interview with the client;

− request copies of all documents Señor Martínez draws up in connection with the house purchase;

− offer your assistance, if needed;

− thank him for his efforts.

When asking for the copies of documents, use some of these phrases from Exercise 28.

Exercise 30. Using Señor Martinez's email as a model, write a brief account of your own professional experience as a lawyer to send to a prospective client.

Date: 2014-12-22; view: 1445