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Alex J.
Alex J., Solicitor
Category: Property Law
Satisfied Customers: 3497
Experience:  Two years conveyancing experience.
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Can I sue for a breach of contract?

Customer Question

 


I own a first floor flat (leaseholder) which is in a converted building that consists of 4 flats in total. There is no management company repairs are done on an ad hoc basis. The free holder and her husband currently live in the building About 18 months ago the flat owners had a meeting with the free holder regarding the roof repairs we agreed these repairs necessary as a matter of priority. Under the terms of the lease each flat has to pay 1/4 for repairs to the building and the roof. The free holder appointed her husband as her agent and each flat owner agreed to pay pay £100.00 per month into towards the roof repairs (the free holders husband owns a small flat management/ letting company and opened a client account) This arrangement fell apart although there was quite a substantial amount that had already been paid. All the flat owners decided to pay their share for the repairs when they fall due, as stated under the terms of the lease. The freeholder and her agent obtained estimates, the remaining flat owners were then asked for the balance to pay for the work which in total added up to about £4,000.00 per flat. All the money was paid in full and we were not given the opportunity to get additional estimates the freeholders agent unilaterally instructed the builders and the work was carried out. This consisted of a full roof over hall, work to the chimneys, work to the flat roof pointing of ridge tiles etc. We had our concerns with the agents contractors as they did not show up for months at a time, we were left with unsightly scaffolding around the building for over a year. All the flat owners had paid up front for this work to be carried out. With exception of the freeholder and her agent no one had any control in this situation, we were totally ignored. We asked for meetings and that too was ignored. We wrote letters of complaints again ignored!! The work was finally finished around August last year. The roof has since had numerous problems with leaks and falling debris, I was very concerned that this work had not been carried out satisfactorily and even more concerned that the free holders agent had paid the builders in full. I expressed my concerns to the freeholders agent, I also informed him that I had checked out the builders company only to find it was now dissolved and it was in fact dormant at the time he had instructed them. Despite this the Freeholders agent obtained a guarantee for all the work to the roof areas from the builder. Incidentally the builder is contracted by the freeholders agent to repair all the property he manages through his letting agency. We are now just over a year since this work was completed and there are huge problems on the roof. I have received a letter from the free holders agent stating that he has now gained estimates from another building firm to carry out the work needed to the main roof and the chimneys. The agent now wants a further £4,000 in total £1,000 from each flat owner to pay for this work again. He has not contacted the original builders, when I enquired with the new builders as to why they were at the property they told me the agent wasn’t bothering with the old builders and had asked them to provide estimates. The free holder and her husband have proven to be extremely difficult obstructive people, there is a long documented history spanning over many years. Due to these problems I then referred to my lease, I have discovered that I technically own the roof and the lease states that I am responsible for Organising the repairs, albeit each flat pays 1/4. However the freeholder and her agent took over this role and arranged for all this work to be done. I am very concerned about the roof of the property. There is really bad damage to the roof due to ingression of water in particular to the second floor flat (directly underneath the roof) the ceiling and beams have to be taken out as they are totally rotten due to the ingression of water. This can all be attributed to the sub standard and lack of work carried out by the freeholders agents tradesmen. I am concerned that it would not pass for an insurance claim and it is going to be very expensive to put right. We have the minutes from the meeting regarding the roof and the repairs. We also have letters from the freeholders agent telling us that the work was going to be carried out by their contractors.We also have copies of the estimates and the paid invoices from their contractors. Can the landlady or her agent be sued for breach of contract? What information would I need to commence proceedings in court? Can the freeholder be sued for the damage we are now suffering due to the shoddy work? Optional Information: Country relating to Question: United Kingdom What have you tried so far?: you 

Submitted: 3 years ago.
Category: Property Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

Do you know if the builders are still solvent and trading?

Do you have a copy of the invoice from the builders?

Kind regards

AJ
Customer: replied 3 years ago.

The builders are still trading however they have dissolved the company that did the work.


We do have copies of the paid invoices.


We did not hire the contractors the landladies agent hired them.


Who would the contract be with the landlady or the landladies agent (her husband)?


It was only after all these problems I discovered that it is actually my flat that is responsible for the roof and the organising of the repairs etc. Does this alter the position legally in any way in the event of a claim?


 

Customer: replied 3 years ago.

Forgot to mention that the builders are still trading with a new company name and a new company number.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Without the invoice being in your name and the company now insolvent I m afraid any claim against the builder would be hugely expensive and problematic.

Do you have a copy of the lease to hand, could you tell me what the landlords covenant is to repaid the property?

Kind regards

AJ
Customer: replied 3 years ago.
Customer: replied 3 years ago.

Attachment: 2013-12-03_133309_lease_.zip

Attachment: 2013-12-03_133527_lease__2.zip

Attachment: 2013-12-03_133659_lease__2.zip

I am having difficulty up loading the lease here is what it states in the lease


In the lease it states as follows: I am the purchaser (upper flat)



For the avoidance of doubt it is hereby declared that this underlease shall always be construed as the joists upon which the first floor of the upper flat rests are the property of the purchasers and shall be maintained and repaired by the purchasers or their successors in title



The footings and foundations main walls and timbers of the house up to the level of the top of the brickwork supporting the said joists are the property of the vendor and shall be maintained and repaired by the vendor and her successors in title all other parts of the house being the upper flat including the roof are the property of the purchasers and shall be maintained and repaired by them or their successors in title




Fourth schedule Stipulations and obligations to be observed and performed by the Vendor


8. At all times hereafter to contribute and pay one - half part of:- the roof of the demised premises



There are now four flats


It states that I technically own the roof and I am responsible for Organising the repairs etc albeit each flat pays 1/4. However the freeholder and her agent took over this role and arranged for all this work to be done using their contractors and we all paid in full 1/4 each approximately £4,000 per flat.



I do not expect to get anywhere with the builder I want to know who we can sue for breach of contract


Thanks

Customer: replied 3 years ago.

So sorry the lease seems to have attached (about 6 times!)

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you. No problem.

What you maybe able to do is sue the landlord for breach of his/her repairing covenants.

I will review this and revert to you as soon as possible, I may not be able to respond until the morning.

Kind regards

AJ
Customer: replied 3 years ago.

Ok thanks

Expert:  Alex J. replied 3 years ago.
Many thanks.

AJ
Expert:  Alex J. replied 3 years ago.
Hi,

My sincere apologies for the delay but I cannot open these documents.

Can you send them to [email protected] for my attention?

Kind regards

AJ

Customer: replied 3 years ago.

I have sent it over to the email address you have provided. Please could you let me know that you have received it. Thanks

Expert:  Alex J. replied 3 years ago.
Thank you.

Kind regards

AJ
Customer: replied 3 years ago.

Attachment: 2013-12-05_103219_2013-11-05_104853_lease_.zip

I have just tried to up load it again here

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I think the problem is I need it to go that email address as I cannot open these ZIP files.

Kind regards

AJ
Customer: replied 3 years ago.

The email address you have given me must be wrong as all the mail is being returned please could you check and get back to me. Thanks

Expert:  Alex J. replied 3 years ago.
Hi,

Thanks.

I have just sent the matter to customer service. They should get in contact to arrange for you to send the documents to me.

Kind regards

AJ
Customer: replied 3 years ago.

I have attached it again however In the event that this problem continues with not being able to open the document could you please answer my questions based on the information I have already provided.


 


Thank you

Attachment: 2013-12-05_111635_2013-11-05_104853_lease_.zip

Attachment: 2013-12-05_111852_2013-11-05_104853_lease_.zip

Customer: replied 3 years ago.
Customer: replied 3 years ago.

Customer services can not open the file and I do not quite know how to change the format do you have an alternative email address?

Customer: replied 3 years ago.

Apologies for this. I think this file can only be opened if you are using a MAC ?

Expert:  Alex J. replied 3 years ago.
Thank you.

I am afraid I am not using a Mac.

I do have access to one but it wont be until friday evening, can you wait that long? Otherwise I will refer it to someone else.

Kind regards

AJ
Customer: replied 3 years ago.

Yes Friday that will be fine. Would you be in a position to answer my questions once you have it? In the mean time I will continue to try and convert the file but its not looking hopeful


Thanks

Expert:  Alex J. replied 3 years ago.
Thank you very much.

Kind regards

AJ
Customer: replied 3 years ago.

Have you been able to read the lease?

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

I am very sorry but I have tried on two machines and cannot open these files.

I want to assist you so can I make the following suggestion. There is a free Government service called LEASE Advisory and they are set up to assist long leaseholders and landlords to understand their rights. The site is www.lease-advice.org

They have dedicated advisers that you can speak to over the phone and I think they would be much better placed to assist with this.

My sincere apologies I really want to assist but I am afraid without seeing the lease I may be doing you a dis service.

Kind regards
AJ
Customer: replied 3 years ago.

I have already spoken to them about a breach of contract does not appear to be their department and I was advised to seek the advice from a solicitor


I have already done this and I have been informed that there is grounds for a claim so based on the information I have provided regarding the roof and the extract I have provided from the lease


could you please advise me who the breach is with


1. The freeholder


2. The freeholders agent


 


Thank you

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

The liability is with the freeholder. They have the repairing covenants in the lease, if the freeholder has been let down by the managing agents that is an issue between them and the managing agents.

Kind regards

AJ
Customer: replied 3 years ago.

Does the legal position change at all as in the lease it states I am responsible for the roof albeit not financially as each flat has to pay 1/4 of the cost?


Also just to clarify does being a freeholder always mean they have the repairing covenants in the lease?


 


Here is what is stated in the lease


In the lease it states as follows: I am the purchaser (upper flat)



For the avoidance of doubt it is hereby declared that this underlease shall always be construed as the joists upon which the first floor of the upper flat rests are the property of the purchasers and shall be maintained and repaired by the purchasers or their successors in title



The footings and foundations main walls and timbers of the house up to the level of the top of the brickwork supporting the said joists are the property of the vendor and shall be maintained and repaired by the vendor and her successors in title all other parts of the house being the upper flat including the roof are the property of the purchasers and shall be maintained and repaired by them or their successors in title


 


Fourth schedule Stipulations and obligations to be observed and performed by the Vendor (freeholder)


 


8. At all times hereafter to contribute and pay one - half part of:- the roof of the demised premises



Aside of all of the above the freeholder had a meeting with the flat owners (we have the minutes) it was agreed by all that the work needed to be carried out. She took the matter into her own hands and she instructed her agent (husband) to deal with the roof repairs who in turn collected the money from all the flat owners and once he had the money he then instructed his own contractors we did not have any say so in who did the work.



Thanks




 



 


Thanks

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

You as purchaser have to repair the roof and the vendor has to contribute to that.
Effectively by arranging this herself she has taken the right away from you.

What I suggest is you ask her to assign/subrogate the right to sue the builder or managing agents for the negligent work and in return you agree not to take any action against her.

In the mean time have you had your own surveyor look at the rook and see what would need to be done to rectify the problem and what was done negligently? Also was the roof subject to any bond or guarantee?

Kind regards

AJ
Customer: replied 3 years ago.

Hi


Thanks for your response a couple of issues here, firstly the freeholder is an absolute nightmare, there is no line of communication with her, I doubt she would agree to assign anything. Her agent is her husband so it is even more doubtful she would sign anything against him plus the builders are now dissolved so it would be futile to even try and sue them.



Just to clarify the position, I trust that we do have a claim against the freeholder not her agent (husband) for the roof and can sue her?



We have not had a surveyor to the roof as it was very obvious there were problems, the estimates from the contractor confirmed the same. I doubt very much that the freeholder would grant access as she is very obstructive! The problems to the roof became very apparent when water was poring in also the subsequent rot and mould that has been identified. The freeholders agent has now got new contractors and they have given new estimates for the work needed, which is the exact replica of the work that we have already just paid for with the old contractors. The new contractors stated to me verbally that the roof was in a bad state of repair and that the work we had paid for could not have possibly been carried out hence their estimates. The freeholders agent (husband) wrote to us all and said he was hoping to get this through on the buildings insurance, however if the insurance would not pay then we would have to. That is what has prompted me to make my legal enquires.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Have you suggested to the freeholder that it was not their responsibility to repair the roof anyone, and as they have done it negligently they will have to cover the cost.

They dont actually have any right to demand the money from you, based on the lease extract you have provided, in fact it is the other way round. As you are responsible for the roof and they are the ones that have to contribute to you.

Kind regards

AJ
Customer: replied 3 years ago.

Hi


Thank you for getting back to me.


With regard to suggesting to the freeholder that it was not their responsibility to repair the roof, and as they have done it negligently they will have to cover the cost.I have not got to that stage yet as I needed to know exactly what the legal position is first.


It was only once all these problems arose thatI referred to the lease in detail, I then realised the position was that I owned the roof.



Please could you confirm for me what exactly I can do legally if the freeholder or her agent request more money to fix the roof again?



Also what I would respond/quote to them in writing re the the legal position should they request further money?.



Thanks

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Legally there is no obligation on you to pay the money to them. The obligation is actually on the freeholder to contribute to the cost of repairing the roof. This is what I understand the position to be based on the lease extract you have provided.

If they write to you again. Ask them to explain exactly what contract, deed or legislation they believe they are entitled to demand money from you.

Kind regards

AJ

Customer: replied 3 years ago.

Hi


Thanks for your response



Ok, I am now clear on what I can say going forward , however as we are now all aware of the position regarding ownership of the roof, they could just as easily respond by agreeing that it is up to me to organise the work to the roof, so in their mind this would get them off the hook and throw the ball in my court. They seem to be totally ignoring the fact that collectively we have handed over £16,000 for an appalling result. What can I do legally to recover the cost for the shoddy work we have already paid for?



Also just to mention we also found out after all the problems came to light that the freeholders agent (husband) hired the contractors whilst their company was dormant and no doubt due to the job taking so long to complete its very likely they were paid whilst dissolved.




Thanks

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Firstly as the agents agreed to provide the repair service, you could sue them on the basis that they have not provided this service with reasonable care and skill.

Secondly yeah it would get them off the hook, but the freeholder would still have to contribute to the roof. Wait to see what the outcome of the insurance claim is first before taking the responsibility back off them.

Kind regards

AJ

Customer: replied 3 years ago.

Hi


Thanks for your reply


So in the event of the insurance not agreeing to pay out who is it we would sue for breach of contract, the freeholder or her agent?


 


Would we be with in our right to refuse to pay any more to the roof?


 


 


Would we be with in in our right to demand that they correct the roof problems at their own expense ?


 


Thanks


 

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I think you would only be able to sue the agent. Presumably the agent contacted you directly to collect the monies. Therefore your only argument is that as you were responsible for the roof repairs. Then the agent provide the service to you. You could demand that the agent rectify the damage to the roof as the did not exercise reasonable care and skill when selecting a contractor.

From what I see and the information you have given me there is nothing that the freeholder can do to get money off you for the roof, as the roof is your responsibility.

Kind regards

AJ

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