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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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Hi, we are freeholders of one (of 7) houses in a Victorian.

Customer Question

Hi, we are freeholders of one (of 7) houses in a Victorian. Each house has (confirmed in title deeds) right of access to a communal drying area, and responsibility for a proportionate share of maintenance. However, ownership of the terrace was unknown to us, and no preventative or other maintenance has been carried out for 50 or more years. A company which bought up and manages the local council's social housing stock, and one house in the terrace, now says that it is the owner and is asking us to contribute 1/7 cost of urgent repairs specified by them, at £24k total, but no guarantees that when work starts more may not be discovered, could be £100k, ie blank cheque. Question: even accepting our deeds' recognition of shared responsibility, is there a failure of duty on the part of the owner to maintain regularly, making it unfair in law to load higher and unspecifiable costs on current users?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
Do the deeds use the word 'proportionate'?
Customer: replied 2 years ago.

Hi. They say, over several paragraphs (eg including shared drainage, on which the law has I believe now changed: "a right to use the land coloured green on the said plan as a common drying ground [...] SUBJECT to the Purchaser [...] paying a proportionate share according to user of the cost of the maintenance and repair of the said common drying ground...". A complicating factor is that the drying ground is only vaguely marked, but is on a terrace supported by a retaining wall whose primary purpose is to support it; I therefore believe that ownership of the drying ground implies ownership of the wall, and it is the wall which is failing. I also believe that the owners, as inheritors of the council's assets and liabilities, did not know that they owned it; certainly, having taken over the council's assets in 2002, they carried out no surveys or inspections of the area, or made any contact with freeholders, until the penultimate property in (former) council/social ownership sought T exercise their right to buy in 2013. The surv

Customer: replied 2 years ago.

Apologies, I am now on a PC rather than smartphone. To continue: the survey was completed in October 2013 (without our knowledge) and the results and demands for payment presented in September 2014; ie nearly another full year of water ingress/ice damage might have occurred even since then. To complicate matters further, many years ago the council (presumably as owners of several houses in the terrace) removed some Victorian sheds and outhouses whose walls buttressed the wall; without a full professional report we cannot know whether this weakened the wall, but equally it would have been clear at the time that the wall was in a very poor state of repair (pointing virtually non-existent in places).

Expert:  Jo C. replied 2 years ago.
There is a legal doctrine of mutual benefit and burden. That says that you have the burden of repairing something in proportion to the benefit.
Only seven people use this therefore and no one else has any benefit from it whatsoever, then you are responsible for 1/7 of the cost of the maintenance and repair and upkeep.
If however you don't use it then you are not responsible.
There is a very important issue here and that is that you are only responsible for maintenance occasioned by your use and if you are using this for drying clothes it becomes a very expensive clothes dryer!
The benefit that you get far outweighs the burden which they are placing upon you.
My suggestion would be to get together with the other six freeholders who have also presumably when asked to pay 1/7 of this money because that way, if you spread the legal costs each of you will be paying a relatively small amount.
If you then instruct the same solicitor the solicitor can write and make an offer towards the maintenance which is commensurate with the use that you've had.
Drawing a parallel to this: if there was a pathway that you walked up and down once a week and you had the benefit of walking over it along with one of the property owner and it was really deteriorated and whoever owned it decided they were going to spend £20,000 on a beautiful surface, it would be grossly unfair you to have to constant contribute £10,000 as your proportion of the burden of repair when you use it so little.

I hope that explains things.
Can I clarify anything for you?
Customer: replied 2 years ago.

Dear Jo,

Thank you for this. So it would be fair to say that the bald words of the deeds (which the company is using against us) are overridden by this principle in law? Would it also then apply that a person with two years' freehold possession (using the drying area once a week during warm months) would have less liability than someone with forty years' freehold? (I'm not actually suggesting that this is a wise argument; I agree that getting all seven householders together is the best course of action, and upsetting any of them from the start is not great, but I am interested in the principle lest anyone else raises it!).

I did say to the company that this is a bad situation which we would not wish to see repeated in the future (I did also state, as you do, that it would be invidious if (for example) they decided to repave in Carrera marble at our expense) and asked if they would consider transferring ownership to a co-operative in future, so that proper inspection, maintenance and insurance could be factored in; they were absolute in saying no, which leads me to believe that they view this area as an asset; in which case I am unconvinced that they are not responsible for ensuring that it is looked after, it they wish to retain ownership. Or is this a nonsense of mine?

I suspect that settlement will depend on goodwill based on the leverage your opinion provides, but am also concerned not to enter into any arrangement which creates a presumption of future liability.

I am grateful for your advice so far and would be interested in any comment you might have in these regards.

Many thanks

Victor

Expert:  Jo C. replied 2 years ago.

the wording in the deeds helps you because it says (as is normal) “…a proportionate share according to user…”. It is the last bit, “according to user” because he will use this area for drying, you only responsible in respect of the amount of use.

They have bought this area because 7 people use it for drying. They have bought it because it’s an asset otherwise, if it’s a liability they wouldn’t have bought it. If all the maintenance costs are borne by 7 people on there is no rent, there is absolutely no reason for them to buy it. It’s likely they’ve inherited it as part of an overall package of land and what they are trying to do is mitigate their loss of this liability which they’ve inherited and has been neglected for so long.

On this latter point you would not be responsible anyway for any deterioration which has happened as a result of their failure to maintain.

At this stage, I must tell you that if this goes to land tribunal it is not going to be a cheap argument although spread between seven of you the cost may be bearable. Whether it goes to the land tribunal or not comes down to how steadfastly these people believe that they can recover the full cost from the seven of you.

It’s impossible to say what would happen with this if it goes to tribunal because I can only give you an opinion based upon the facts in front of me and even with a favourable opinion, people sometimes lose in court. Litigation never comes with a guarantee

Customer: replied 2 years ago.

Thank you Jo, you have been most helpful. I fully appreciate that in the end any advice you give may be contested - I'm sure the owners wouldn't like to cave in without a fight! But we at least now have a basis on which to proceed.

If I may therefore ask one final question: if they make an offer in settlement on this occasion, what do we need to do to ensure that this does not set a precedent on shares/obligations/liabilities in the future (eg the Carrera Marble repaving question)? Eg if the seven households accept a 25%/75% cost split, do we risk being held to this in the future - more blank cheques? (Personally I think that this proportion would be excessive for us, especially based on what you have advised, but I am only one in seven as you know).

Many thanks again; I am very happy with the help you have given and will rate you accordingly.

Best wishes

Victor Launert

Expert:  Jo C. replied 2 years ago.

Thank you.

Any offer should always be marked Without Prejudice save as to Costs because then they cannot use it in court as any kind of admission for the future.

In this case I would go further and say that you are prepared to offer it (whatever it is) on this occasion only on the strict understanding that it does not constitute any acquiescence or agreement to pay this amount or any amount at any stage in the future.

Faced with the above, they would be hard pressed to convince a court that you had agreed to pay this amount of money in proportion on all future occasions

Customer: replied 2 years ago.

Dear Jo,

Very happy so far but I suspect (I hope!) that you have reversed your intended meaning in your sentence "the benefit that you get far outweighs the burden which they are placing upon you"...

I would be most grateful for confirmation!

Many thanks

Victor

Expert:  Jo C. replied 2 years ago.

That is correct. I apologise. It should say that the burden far outweighs the benefit.

i.e you are being asked to pay far more than is reasonable for what is basically an area used for drying

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