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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 own a flat leasehold, the Maintenance/ground rent is £2600

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I own a flat leasehold, the Maintenance/ground rent is £2600 P/a. I had a knee reconstruction last March and hardly worked at all. Possibly due to 'cabin fever' whilst convalescing and a very messy break up I have been signed off work with depression and anxiety and haven't been working. I owe £1300 still, I managed to get £50 over today as a good will gesture. I have told them they will get their money eventually when I'm back on my feet but they are threatening me with legal action. Add to that by the management agent they admitted they have been having problems with water and damp coming through the walls and one of my bedrooms carpet was absolutely soaked and my parents kindly paid for it to be replaced as I had a lodger. They are refusing to pay for the carpet as they said I should claim on my content insurance which I refuse to as it will put premium up etc. one of their maintenance staff saw how soaked the carpet was but they are saying they only have buildings insurance and won't pay a penny. How do I stand legally on that situation as I feel the problem was caused through neglegance of maintaining the exterior of the building then they should foot the bill?.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask if the landlord was aware of the damp problem prior to your carpet being damaged please and failed to remedy the issue?
Has the damp issue now been fixed to your knowledge?
Customer: replied 2 years ago.

Yes they were aware of the damp problems as I was informed by one of the maintenance people that there are a lot of flats having similar problems. I no longer have the damp problem but I had a letter from the management agency saying there is an issue with damp coming in, it is going to be rectified I believe as render has fallen off the exterior walls in places from a considerable height which could seriously hurt someone.

This is why I don't feel it unjustified to deduct the cost of the carpet and underlay from my maintenance fees. They are responsible for the problem in my eyes but they are saying they are only covered by buildings insurance. That may well be the case but there's about 190 flats in the block all paying extortionate maintenance charges so if they can't do it through their insurance then they should knock it off my maintenance out of their own pocket.

i look forward to hearing back from you.

Expert:  Joshua replied 2 years ago.
thank you. In respect of any leaks of damp issues for which the landlord is responsible for, the starting point is that if a leak occurs due to something that the landlord did not and could not reasonably have been expected to know about - for example a burst pipe - then responsibility lies with you as the owner of the goods or items that are damaged to cover the cost of any damage either out of your own pocket or through your insurance contents policy.However, if you can demonstrate that the landlord was negligent in maintaining the building - either because he did know about a problem or out to have reasonably known about it - and that he failed to maintain structure or structures for which he is responsible for under the terms of the lease which subsequently caused the leak into your flat, then you can hold the landlord responsible.in order to hold the landlord responsible, you would need to demonstrate the above negligence. You have of course your own statement but ideally you would be able to obtain some corroborative evidence from third parties-the maintenance man would be ideal though he would likely be unwilling to assist. If you can obtain any statements from other residents that are aware of the issues to this may be of assistance.If you can demonstrate evidence of negligence as above, you can contact the landlord and advise that you consider them to be in breach of their lease repairing obligations and a negligent in respect of their duties under the terms of the lease which has resulted in damage to your property and that as a consequence you propose to deduct the cost of either cleaning your carpet or replacing it as is necessary. if they do subsequently seek to recover monies from you in the County Court for unpaid service charges, you may consider a counterclaim for the costs of your carpet.There is one potential area of weakness in the above application which is that if service charges were unpaid at the time of the leak, may find that your lease is worded to provide that the landlord is subject to your payment of service charges, obligated to maintain the structure of the building. If your lease is worded in this way, you could find that the landlord attempts to make an argument that as you are in arrears in respect of your service charges, you do not have the benefit of the lease repairing obligations during the period in which the leak took place. In my view this is a slightly stretched argument that if it was the case that you were in arrears at the time, you may find that the argument has some traction with the judge.Of course, hopefully this matter would avoid going to court and you will be able to settle the matter amicably between you and the landlord.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 2 years ago.

Thank you, ***** ***** helpful. Should they take my arrears in maintenance to a legal level, how do I stand as I have been drip feeding them money as and when I can but having been signed off work now for over a year you can appreciate its been a struggle. On basis I have been making payments as and when I can, it's still overdue but legally will it have helped that I have drip fed them money? I told them they will get their money and I even said to charge me interest if necessary. What is your opinion on that scenario please?

Expert:  Joshua replied 2 years ago.
The arrears of service charge is not a helpful position to be in. As a leasehold tenant you are at a disadvantage legally to the landlord if you are in arrears of service charges you do not dispute are due. this is because your lease will very likely provide that the landlord can take action in the County Court to recover arrears of service charge and look to you for the cost of any legal charges associated with doing so under the terms of your lease. In addition, the landlord can having obtained judgement against you, but to make an application to forfeit your lease. This is not something to immediately panic about as this is rarely granted by the courts and relief is readily given from forfeiture when arrears can be paid in addition, if there was a mortgage on the property, your mortgage lender will likely pay the arrears to avoid a forfeiture hearing but the practical consequences are that costs can quickly mount up if the landlord goes along this route and so, appreciating it is easier said than done, the faster the arrears can be brought up to date, the better from your perspective.There is a technical argument you may be able to employ to delay any action which is that any demand the service charge that is raised must be raised within 18 months of the landlord incurring the cost and any demand must include a summary of your rights and obligations which must be worded in the prescribed form otherwise the demand is invalid. The words that must appear must be exactly as follows for the invoice for service charge to be valid otherwise it can be ignored and is not payable until they do issue a valid invoice with the below summary included.I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful. Service Charges - Summary of tenants' rights and obligationsThis summary, which briefly sets out your rights and obligations in relation to variable service charges, must by law accompany a demand for service charges. Unless a summary is sent to you with a demand, you may withhold the service charge. The summary does not give a full interpretation of the law and if you are in any doubt about your rights and obligations you should seek independent advice.Your lease sets out your obligations to pay service charges to your landlord in addition to your rent. Service charges are amounts payable for services, repairs, maintenance, improvements, insurance or the landlord's costs of management, to the extent that the costs have been reasonably incurred.You have the right to ask the First-tier Tribunal to determine whether you are liable to pay service charges for services, repairs, maintenance, improvements, insurance or management. You may make a request before or after you have paid the service charge. If the tribunal determines that the service charge is payable, the tribunal may also determine- who should pay the service charge and who it should be paid to;the amount;the date it should be paid by; andhow it should be paid. However, you do not have these rights where- a matter has been agreed or admitted by you;a matter has already been, or is to be, referred to arbitration or has been determined by arbitration and you agreed to go to arbitration after the disagreement about the service charge or costs arose; ora matter has been decided by a court.If your lease allows your landlord to recover costs incurred or that may be incurred in legal proceedings as service charges, you may ask the court or tribunal, before which those proceedings were brought, to rule that your landlord may not do so.Where you seek a determination from the First-tier Tribunal , you will have to pay an application fee and, where the matter proceeds to an oral hearing, a hearing fee, unless you qualify for fee remission or exemption.. Making such an application may incur additional costs, such as professional fees, which you may have to pay.The First-tier Tribunal and the Upper Tribunal (in determining an appeal against a decision of the First-tier Tribunal) have the power to award costs in accordance with Section 29 of the Tribunals, Courts and Enforcement Act 2007. If your landlord -proposes works on a building or any other premises that will cost you or any other tenant more than £250, orproposes to enter into an agreement for works or services which will last for more than 12 months and will cost you or any other tenant more than £100 in any 12 month accounting period.Your contribution will be limited to these amounts unless your landlord has properly consulted on the proposed works or agreement or the First-tier Tribunal has agreed that consultation is not required. You have the right to apply to the First-tier Tribunal to ask it to determine whether your lease should be varied on the grounds that it does not make satisfactory provision in respect of the calculation of a service charge payable under the lease.You have the right to write to your landlord to request a written summary of the costs which make up the service charges. The summary must- cover the last 12 month period used for making up the accounts relating to the service charge ending no later than the date of your request, where the accounts are made up for 12 month periods; orcover the 12 month period ending with the date of your request, where the accounts are not made up for 12 month periods. The summary must be given to you within 1 month of your request or 6 months of the end of the period to which the summary relates whichever is the later.You have the right, within 6 months of receiving a written summary of costs, to require the landlord to provide you with reasonable facilities to inspect the accounts, receipts and other documents supporting the summary and for taking copies or extracts from them.You have the right to ask an accountant or surveyor to carry out an audit of the financial management of the premises containing your dwelling, to establish the obligations of your landlord and the extent to which the service charges you pay are being used efficiently. It will depend on your circumstances whether you can exercise this right alone or only with the support of others living in the premises. You are strongly advised to seek independent advice before exercising this right.Your lease may give your landlord a right of re-entry or forfeiture where you have failed to pay charges which are properly due under the lease. However, to exercise this right, the landlord must meet all the legal requirements and obtain a court order. A court order will only be granted if you have admitted you are liable to pay the amount or it is finally determined by a court, tribunal or by arbitration that the amount is due. The court has a wide discretion in granting such an order and it will take into account all the circumstances of the case.
Customer: replied 2 years ago.

Albeit I am in arrears, my argument would be that I have been withholding it due to the original instance due to the cost of the replacement carpet my parents paid for, having then told the floor may have to be dug up to then receiving a letter that they are aware of damp issues in various flats. On the grounds of that I was not filled with confidence on the prognosis hence I have withheld in round figures £1000 to cover original replacement carpet and potentially another replacement carpet if it happened again. I have dates from last year when various people came to try and diagnose the problem. This is not the first issue either, approx 4 years ago water was leaking from the ceiling in my bedroom from a boxed in sewerage stack pipe which they fixed but surely this should all stack in my favour?

Expert:  Joshua replied 2 years ago.
I would be delighted to continue to assist. I am conscious this thread is getting quite long and I need to balance my time economically. I should be very grateful if you would kindly consider clicking a rating for my service to date. I will be please to deal with your follow up question without further charge - we will not be cut off. I look forward to hearing from you.
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