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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, Im the owner of a 3 bedroom flat in South London, a previous

Customer Question

Hi, I'm the owner of a 3 bedroom flat in South London, a previous owner of one of the flat at the same building (he sold his flat last year, and now there is a new owner) did install a wooden post on the wall partition that belongs to my flat 1,
by doing so he damaged the damp membrane proof and has caused water infiltration.
( I have a damp report specifiying this)
Please note the managing agent was alerted when I found out about this, I invited them to get in touch with the person who installed the post, but they didnt do anything,
they also failed to notify the new owner of the ongoing dispute.
Now who is liable for the damages? The new owner or the managing agent?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 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 :

May I ask where the damp membrane is located please? Is it located on the joists between the flats or within the internal decoration of the flats please?

JACUSTOMER-vbbg9opb- :

Hi Joshua, the membrane is located on the lower partition of the external wall, near the ground, on the external walls. The external walls belong to my flat. He did not install the post on his walls. But onto his neighbor, myself.

Joshua :

Thank you.

Joshua :

The starting point is your lease. Although I note what you say in terms of the external walls belonging to your flat, that would be very unusual. A lease would normally provide that you are responsible for the internal parts of your flat, being the internal plaster and decorative work, doors and windows and so on but the landlord (freeholder) is responsible for the structure of the building which would normally include the external walls, joists between flats, roof, foundations etc.

Joshua :

There is no rule that says this must be the case but the overwhelming majority of leases provide for this.

Joshua :

Checking your lease will confirm the position. Assuming I am correct in my assumption that the membrane is external to your flat then the landlord would be liable for repairing the same and would have a claim against the owner of the flat whose previous owner installed something damaging the membrane.

JACUSTOMER-vbbg9opb- :

I'm the landlord, the freeholder,

Joshua :

If however you are correct in your belief that your lease provides that you are responsible for this membrane which as above would be unusual but by certainly not impossible, then you would be responsible for repairing the same but would have a claim against the upstairs owner for negligence and the cost of repair.

Joshua :

Thank you for the clarification.

Joshua :

If you are the freeholder of the building and the leaseholder of the flat then you will be responsible more likely in your capacity as freeholder to repair. In either event you would have a claim against the new owner of the other flat if the previous owner installed something which damaged the building.

Joshua :

This is because the new owner takes all benefits and liabilities under the lease from the old owner.

JACUSTOMER-vbbg9opb- :

So the new owner takes all benefits and liabilities from the old owner, correct?

Joshua :

Accordingly you may wish to write to the other leaseholder advising them of the situation and notifying them of a breach of the lease in the installation of the post by the previous owner and they are liable for his actions and providing them with quotations for the repair which you will be seeking to recover from them in due course.

Joshua :

That is correct.

JACUSTOMER-vbbg9opb- :

and what about the managing agent ? dont have any responsabilites on th matter?

Joshua :

The new owner may or may not have a claim against the old owner if the old owner misrepresented something to the new owner but that is entirely a matter between the new owner and old owner and does not change that the new owner is liable if the previous owner carried out works which have damaged the building

JACUSTOMER-vbbg9opb- :

ok, and what about the managing agent?

Joshua :

The managing agent is only liable so far as monies cannot be recovered from the new owner (for example if he is bankrupt and has no money to pay) and the agent can be shown to be negligent. In the assumption that the new owner is not insolvent and will be able to pay the managing agent is unlikely to feature as a potential target for damages though you may wish to point out to them that you do consider their failure in administration to be negligent and that you reserve your position against them.

Joshua :

Is there anything above I can clarify for you any further?

JACUSTOMER-vbbg9opb- :

one sec, what i need to know is if this post has been put legally or illegaly?

JACUSTOMER-vbbg9opb- :

i dont think anyone can turn up to your flat and nail the masonry and damage it, isn't'?

Joshua :

Installation of a post on the external wall of the building without the permission of the landlord will be a breach of the lease. If the landlord (you) gave permission then it is lawful. If you did not then the work will be a breach of the lease and liable to damages as above.

Joshua :

Is there anything above I can clarify for you any further?

JACUSTOMER-vbbg9opb- :

one sec,

JACUSTOMER-vbbg9opb- :

please dont close the post, am on the phone

Joshua :

I won't - please don't worry

JACUSTOMER-vbbg9opb- :

one more thing,

JACUSTOMER-vbbg9opb- :

if i have to provide alternative accomodation to the person living in that room, these expenses can be added to the repair bill?

JACUSTOMER-vbbg9opb- :

and can i add additional compensation for distress ecc

Joshua :

Who is the person living there please - are you renting to them?

JACUSTOMER-vbbg9opb- :

yes

Joshua :

Thanks. As a landlord under a tenancy agreement it is highly doubtful you would be required to provide alternative accommodation. This only arises if the property is uninhabitable and the tenancy agreement should provide that if the property becomes uninhabitable that the rent is suspended. Most boilerplate tenancy agreements have such a provision. However notwithstanding this, such costs as you necessarily incur could be sought against the offending party however only in so far as those costs are necessarily incurred - i.e. provision of alternative accommodation is as above unlikely to be a legal requirement and so would not be able to be reclaimed.

Joshua :

I hope that makes sense?

JACUSTOMER-vbbg9opb- :

ok,

JACUSTOMER-vbbg9opb- :

i need to pop out, please dont close the post, might have one more question, thx

Joshua :

No problem. Do come back to me if you need to know anything else.

Joshua :

Once you are happy with everything I should be very grateful if you would kindly take a moment to rate my service to you today.

JACUSTOMER-vbbg9opb- :

hi, i have a couple more question re the case, will get back to you shortly

Joshua :

Certainly

JACUSTOMER-vbbg9opb- :

ok, the previous owner, the person who attached the post and made the damage, replied last year wiht this email:

JACUSTOMER-vbbg9opb- :

[

Luca has no right to request the fence be removed as it is fixed along the property line and into a party wall. In accordance with the Party Wall etc… Act 1996 I do not need his (or indeed anyone's) permission to fix fence posts into party structure. Please see the attached link for guidance:
JACUSTOMER-vbbg9opb- :

is this correct?

JACUSTOMER-vbbg9opb- :

he still needed to ask landlord permission right?

Joshua :

No he is not correct if he is a leaseholder in the building as he is bound by the terms of his lease not to do so. The Party Wall Act does not make it legal for him to breach the terms of the lease. Even if the above were not true, the PWA does not mean that a person that attaches things to a party wall is not liable for damage if he causes damage as a result of attaching something.

Joshua :

Is there anything else i can help you with? ps. I am leaving for an appointment now so will be able to respond to anything further this evening with your permission.

JACUSTOMER-vbbg9opb- :

yes,

JACUSTOMER-vbbg9opb- :

ok, when this person replied to me, the managin agent was dealing in between us,

JACUSTOMER-vbbg9opb- :

the managing agent was dealing ,

JACUSTOMER-vbbg9opb- :

i notified the managing agent that what he replied was just nonsense and that they should act promptly to remove the post and fix the walls,

JACUSTOMER-vbbg9opb- :

but they did nothing,

JACUSTOMER-vbbg9opb- :

so now that the indoor is damaged,

JACUSTOMER-vbbg9opb- :

the managing agent wrote me that they will take resposanbility of there is a second damp report saying the same, that the problem of the damp is the actual post,

JACUSTOMER-vbbg9opb- :

(so im obtaining in these days a second report)

JACUSTOMER-vbbg9opb- :

once i have this, they will need to take care of the damages, and its their task if they want to pursue the costs with the previous or new owner,

JACUSTOMER-vbbg9opb- :

however i want to know if their behaviour is a breach of our contract,

JACUSTOMER-vbbg9opb- :

cause id like to be able to terminate agreement with current managing agent (once they repaired),

JACUSTOMER-vbbg9opb- :

but the contract says this:

JACUSTOMER-vbbg9opb- :

6. Termination

  1. 6.1 After the Term of the Agreement (or if the leaseholders enforce a right to manage or form a commonhold) either party may terminate this Agreement by giving three months written notice.

  2. 6.2 If at any time either party is in breach of this Agreement:
    6.2.1 the other may serve on the party in breach written notice specifying the breach or

    breaches and requiring them to be remedied within 30 days; and
    6.2.2 if the party in breach fails within 30 days of the service of such notice to remedy

    such breach or breaches; then
    6.2.3 the party who served the notice may terminate the Agreement with immediate

    effect by serving written notice to that effect on the other party.

  3. 6.3 If either party becomes insolvent the other party may end this agreement immediately by

    serving notice upon the other to that effect.

  4. 6.4 On termination of this agreement the Agent will return to the Client all originals and

    copies of deeds relating to the Property and all other material relating to the Property necessary for the continuing management.

JACUSTOMER-vbbg9opb- :

--

JACUSTOMER-vbbg9opb- :

so can i say that they actually breach the contract? or am i still bound to give 3 months notice??

JACUSTOMER-vbbg9opb- :

hello?

Joshua :

Sorry for the delay in reverting to you - I am in between appointments and using my phone to respond

Joshua :

the agents may be negligent in their carrying ng out their duties. However this would not amount to a breach of contract but rather a potential claim for you to pursue under the tort of negligence. According to the agreement you can give three months notice to terminate the agreement and would presumably not wish to terminate before they have resolved the above matter if the have taken responsibility to do it

Joshua :

notice must be given in writing if you intend to cancel

Joshua :

Is there anything else I can help you with. As above I am out on appointments so will be next available after circa 7pm

Joshua :

Is the above of assistance?

Joshua :

Is there anything else I can help you with or does the above answer all your questions?

JACUSTOMER-vbbg9opb- :

yes, i have another question,

JACUSTOMER-vbbg9opb- :

will write soon

Joshua :

Thank you. I am very happy to continue to assist however I should be grateful if you would kindly rate my service to you to date. I will be very happy to assist with your follow up questions without furtehr charge.

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. If there is anything else I can help with though please reply back to me though.

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