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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I share the freehold on a property in Plymouth. It is a conversion

Resolved Question:

I share the freehold on a property in Plymouth. It is a conversion into two flats, both of which I used to own. The top flat is now owned by someone else, I still own the bottom flat - hence the shared freehold.

A double-glazed window near the roof of the property began to let in wet during the bad weather with the result that the ceiling in the room below (in the top flat) has come down. The guarantee on this window expired last year; the company that installed the window has long gone out of business. The owner of the top flat has had two reputable roofers look at the problem and have both said that the windows weren't installed properly - ie the workmanship was shoddy.

There are two questions:
1. Is there any way we can get legal redress/compensation for this situation?

2. As I share the freehold and I am the one who had the window installed - am I liable for all of the cost, half of the cost or none of the cost? I know the moral answer but what is the legal answer?

Many thanks
Pauline Green
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

under the terms of the lease, are you aware as to whether the window in question is the responsibility of the landlord or the leaseholder please? The lease will confirm.

Customer:

Not sure. We share the freehold. I would have thought that the owner of the flat in question would be responsible for any windows in her flat (?). I don't seem to have a copy of any lease dating from the time of my sharing the freehold so have just contacted the solicitors who dealt with it; thet are ringing back tomorrow.

Joshua :

thank you.

Joshua :

starting point for this is the lease which will set out the extent of your respective liabilities for your flats as leaseholders - i.e. what each of you are responsible for as leaseholders maintaining - and what the landlord is responsible for - ie. what is a shared cost between you

Joshua :

typically for maisonettes, the lease will provide that the roof and foundations are to be shared cost as is the structure of the building but the internal parts of the flat including windows and doors are the responsibility of the individual leaseholders. However, there is no law that says this must be the case and there are a considerable number of maisonette leases that exist which simply divide the property into two making the upstairs owner responsible for everything from his flat upwards including the roof and the downstairs owner the opposite

Joshua :

accordingly, to have certainty, you need to check the lease. if you do not have a copy, you can obtain the same from the land Registry for a fee from memory of £12

Joshua :

on the basis that you establish that the upstairs leaseholder is responsible for those in his flat and the window in question is not the responsibility of the landlord and accordingly a shared cost, then you can claim for damage caused to your flat if you can establish negligence on the part of the upstairs leaseholder. Namely, if on the balance of probability he was aware of the leaking window and failed to take steps to remedy the leaking allowing damage to be caused to your ceiling

Joshua :

if however the leak was sudden and was the result of very heavy rain and the damage was caused very quickly such that the upstairs leaseholder could not have reasonably taken steps to prevent the damage, it is unlikely negligence could be established and accordingly, the damage caused to your ceiling would not be something that could be reclaimed but rather would be suitable for a claim against your insurance.

Joshua :

accordingly, there is the above two-step process for establishing whether you can potentially make a claim against the neighbour or not. Providing you can demonstrate to above conditions-namely his responsibility for the window and his negligence in respect of the leak - then you have the basis of a claim against him

Joshua :

is there anything above I can clarify for you?

Customer:

Thanks but you've missed the point a bit. There is no damage to my property. The window and the damage to the ceiling are both in the other flat.

Joshua :

Sorry - I misunderstood that it was the ceiling in your flat that has been damaged. Thank you for putting me right on that.

Joshua :

Given that it is the ceiling in the upstairs flat that has been damaged, generally, the same above principles apply but obviously the circumstances are different. applying the law to the circumstances I now correctly understand them:

Customer:

Should have told you - the top flat is on two floors

Joshua :

the first point is that the buyer of the flat above has no redress against you for faulty workmanship or otherwise of the window. Caveat emptor applies in respect of the purchase of the property and he is responsible for inspecting the property and carrying out such investigations as he considers necessary. Whatever he did or did not do, you have no liability to impersonally for the window unless he can demonstrate a misrepresentation on your part in respect of something is said in respect of the window or you provided a warranty personally in respect of the window which would be extremely unusual and I'm sure you did not do

Joshua :

from there, the only question that remains is whether you as landlord are responsible for sharing the cost of repairs to the window. Again, in order to determine this, we need to go back to the least ascertain the extent of his responsibility and the landlord's responsibility for maintenance. Almost certainly, the lease will provide that he is responsible for his ceiling and I have never seen a lease that says otherwise. In respect of the window the lease will confirm whether he is responsible for this window or whether the landlord is responsible window. If it is him, then he simply is responsible for all of the costs and he may or may not decide whether to make a claim against his insurer. if the lease shows that the landlord is responsible for the window then you may be called upon to contribute 50% of the costs of repairs to the window but only as above, if the lease specifically provides that you are responsible for the same

Joshua :

is there anything else I can help you with?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

No, that's all useful. Thanks. How long can I keep talking to you for my £33? Do I have to stay on-line or can I get back to you somehow?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me.to your account and you can return to it at any time if you have any further follow-up questions on the above. There is no additional charge for asking further follow-up questions on the above

Joshua :

you do not need to stay online and you can return to the same thread at any time from your customer homepage or link you may have received by email

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