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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69269
Experience:  Over 5 years in practice.
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My question relates to a rental dispute between a tenant and

Customer Question

My question relates to a rental dispute between a tenant and private Landlord.
I am the Landlord. My flat resides in a converted listed building in London. The building is run by managing agents. My flat suffered water damage from my upstairs neighbour's balcony. My neighbour had neglected to clear leaves from his drain. The balcony overflowed and seeped through the lead flashing and into my living room via my ceiling and down the walls. Luckily it did not damage any furniture or my tenant's personal possessions. However it has left very unsightly water stains on the ceiling and walls of my living room. My tenant was also distressed by the experience. I went over there on the day it happened to help her. Two weeks later there was further seepage, again caused by my upstairs neighbour's balcony. The water seepage was not as bad as the first time but it frightened my tenant. Two weeks have gone by and I am still negotiating the building insurance claim through my managing agents. We hope to be in a position to redecorate my flat in two weeks time.
My tenant pays quarterly in advance. On 1 September when her payment fell due, she withheld 10% of the rent owing as compensation for loss of enjoyment of the flat and because I was taking so long to get the repairs done.
There is no specific clause in our very standard tenancy agreement (drawn up by Foxtons). Is she allowed to unilaterally decide what sum is reasonable for her suffering and withhold part of my rent?
I have tried to recover the rent loss through the insurance brokers but unfortunately there is no cover for rent loss unless the property is uninhabitable which it is not.
If my tenant is allowed to withhold rent should i pursue my neighbour and the managing agents? My neighbour is blaming the managing agents for failing to carry out proper repairs to his balcony during the external repairs carried out earlier this year. The managing agents are blaming my neighbour for failing to ensure that his drains are clear of debris.
Thanks for your help.
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
What loss of enjoyment has this caused?
Customer: replied 2 years ago.

This is her email to Foxtons regarding the rent shortfall.

have taken advice from a Barrister and have been told that I should have a reduction in my rent of more than 10 per cent until the current problems are fixed to reflect the loss of enjoyment of my flat.

The facts are as follows :

On Sunday 10 August I experienced severe leaks in the living room of my rented apartment following heavy rain that day. A considerable amount of water came down from the ceiling as well as from the walls. A constant flow of water came running down from three spotlights and each filled up about 7-10 buckets of water which I had to monitor and empty constantly. One wall cracked open with more water coming out of it. The wallpaper started bubbling and it felt that it was literally raining in the apartment. It was a particularly frightening incident to experience alone as I was unable to fully contain such a considerable amount of water. At the same time, I tried to protect the furniture as 90% of it belongs to me. I had just returned from a two-week holiday and cannot imagine the damage that would have occurred had I been absent that day.

I contacted Foxtons emergency number but the man on the phone was unable to help me and instead advised me to contact my landlady direct, who frequently travels abroad. She happened to be in London that day and got back to me and by the end of the afternoon came over to assess the damage in her apartment. She brought with her three huge buckets to help contain the water but by then it had stopped raining and the leaks had stopped. She told me she understood how I felt and knew exactly what had occurred as this situation had happened to her before. She told me that apparently the problem came from the maintenance of the neighbour’s balcony in Flat 4. It was due to leaves blocking the draining system that caused the balcony to overflow with water and flood my apartment. At the time Flat 4 was unoccupied and it wasn’t until the next day that someone could gain access to the balcony and clear the leaves. The landlady assured me that it would be a ten-minute job to fix the walls and repaint the ceiling and that she would send somebody to do the work.

On Thursday, 14 August she sent Bruce, one of her handymen, to look at the damage. He told me that it would not be a quick job and it would take another two weeks for his workers to be able to start repairs. He told me the ceiling could possibly collapse and some of the plaster could come down and that, ideally, the whole ceiling should be thoroughly inspected and properly repaired. However, until such time as the Landlady would agree to have this work carried out, he could replace the wallpaper and paint the stained ceiling. This work would take as long as a week with the ensuing inconvenience of people working every day in the apartment and my having to move and protect all my furniture. My landlady instructed Bruce to remove the big buckets from my living room and assured me that the neighbour’s balcony would be monitored and this situation would NOT happen again. Bruce promised to get back to me to let me know when the repair work would start.

May I also state the fact that recently we have had to put up with maintenance work on the building, scaffolding and workmen affecting our privacy for a two-month period. In fact, the landlord of Flat 4 cannot understand why these leaks occur when maintenance/renovation work has just been carried out on his balcony.

From 14-25 August I heard nothing neither from the landlady nor from Bruce and I continued living with the damages apparent in the living room which not only inconvenienced me but I was too ashamed of the condition of the room to invite anyone to my apartment.

On Monday, 25 August, despite the reassurances of my Landlady, the incidents occured again and water was dripping into my apartment as new leaks appeared in different parts of the ceiling, this time damaging one of my paintings. I immediately contacted my Landlady and told her that this situation needed to be resolved urgently. She copied me in her correspondence in her attempt to resolve the issue with the Contractor and the Quadrant. During this whole period I lived in fear of another rainfall and flooding into my apartment.

On Thursday, 28 August the Contractor and the Quadrant of the building viewed my apartment and apologized for the inconvenience I have had to deal with. They also told me that exceptionally they would block the draining system in Flat 4 so the flooding would never occur again. Since this visit I have heard nothing since from either the Landlady or from Bruce so I am still unsure if the situation has been fully fixed or if leaks could occur again in the instance of rain.

It is clear that before I started renting this apartment the Landlady was already aware of the problem because she admitted to me that it had happened before. She is therefore in clear breach of her repair obligations in the lease. I should state that I have a good contact with my Landlady but despite her attempts to support me I have felt that this problem has been neglected and I have been left in the dark for the past two weeks. It is unacceptable to expect me to pay full rent after such inconvenience.

A 10 per cent reduction in rent is the absolute minimum conceivable for the disruption and loss of enjoyment I have suffered and continue to suffer.

I reserve all my rights to recover more than 10 per cent of my rent if this cannot now be properly resolved. Please therefore let me know urgently when the flat will be properly and permanently repaired.

May I point out that for more than two years (in Islington and in South Kensington) I have been renting through Foxtons and been totally reliable in paying my rent on time. I am disappointed that Foxtons does not support its valued clients in such circumstances and, instead, threatens them. So far I have received only threats instead of support.

This is my reply (there is an email attachment and photo within my email which may not come out your end):

Dear *****
Thank you for your email of today’s date. It’s contents are noted.

There are inaccuracies contained within, most notably there has been no delay. However, my intention in this email is to appraise you of what has happened since we last spoke and where we go from here.

When we met on 10 August, I thought that I had made it clear that no remedial works can be carried out until the source of the leak is established and repaired. The damaged walls to the living room of flat 5 also need time to dry out. This can be anywhere from 2 - 5 weeks depending on the extent of damage.

As the flood was through no fault of my own, the matter has to follow the normal course of raising a claim via the Managing Agents with the building insurance company. This was done on 11th August and a Contractor visited flat 4 and flat 3 that same day. He did not have access to flat 5 that day.

The Contractor found leaves blocking the drain to flat 4. At that point in time, he believed this caused the flood so no further remedial action to the balcony of flat 4 was considered.

I was going to meet Bruce on 12 August so that he could assess the damage and produce a quote for repairs for the insurance company. You asked for us to wait until 14 August when you would be in the flat. I agreed.

I was away on annual leave from 16 to 24 August. I had limited access to my emails and I did not not chase the Managing Agents on progress but the matter was in hand and being moved forward by them.

The day after my return (25 August), the flat flooded again. The cause being water coming in from the balcony to flat 4.

I informed the Managing Agents first thing on 26 August. That same day, I asked you if I could give them and the contractor access to the flat 5 on 27 August. Again, you deferred access until Thursday 28 August because you wanted to be present. I agreed despite the fact that under clause 4.17 of the Tenancy Agreement dated 17 May 2013, I have a right to access the flat, with workmen, upon giving you 24 hours notice, to carry out repairs or assess damage.

Following the contractor’s visit on 28 August, he concluded that:

"Upon inspection of the balcony surface directly above the areas of water ingress within flat 5, I found there to be do defects. There are no splits to the asphalt surface, the kerbs/upstands are all compliant with relevant legislation as is the lead work. It is therefore my opinion that the water ingress within flat 5 was caused as a result of the balcony outlet being blocked. This will have in turn allowed the balcony to fill with water, this water has then passing under the lead flashing and over the asphalt kerbs. Whilst at the property I eased back some of the lead flashing to inspect the surface behind, as you can see from photographs 306 and 307 there is dampness that has not yet evaporated directly below the top of the asphalt kerb. This is evidence that water has penetrated under the flashings and over the kerbs. This combined with the fact that the outlet to this balcony only (all other balconies have slightly larger outlets) has contributed to this problem.

As discussed maintenance and regular gutter clearances on all balconies at the above property is vital. I would suggest that these balconies are inspect four times a year and that a letter is written to all lessees that own a balcony instructing them to ensure their balconies are swept and the outlets cleared weekly (especially in Spring, Autumn and Winter).

Now obviously we cannot count on maintenance alone on this balcony due to the size of the outlet and the problems experienced. Therefore I have instructed for the following additional works to be undertaken:

· All lead flashing adjacent to the parapet walls are to be eased back, the junction between the masonry and kerb sealed with mastic sealant, the entire upstand coated in Acropol water proofing system, the lead flashing eased back into position and the lead mastic sealant to the lead flashings replaced.

· Some slates will be removed from the mansard slope so I can check the upstand, I am very confident there are no problems with this as I inspected when the external works were undertaken. A. The step to the balcony (which I believe is the major point of water ingress) will be entirely coated in GRP (fibrous water proofing system) and the lead flashings re-secured into position.

· I am also going to investigate the possibility of introducing an overflow pipe through the asphalt kerb and parapet wall so that the balcony cannot back fill to a level higher than the asphalt kerbs. If this is possible and can be undertaken easily I would suggest that we instruct for this to be undertaken on all 4no balconies. But we can discuss this later with you.

I am aiming to undertake these works next Wednesday and Thursday weather permitting."

I attach the full email and photographs for your reference.

<Mail Attachment.eml>

I did not pass this email on to you as I did not want to trouble you with the details. I am sorry that i did not keep you in the loop.

The work was carried out last Wednesday and Thursday (3 & 4th September). I have only just learnt of this fact this evening because it was subject to the vagaries of the weather.

Nick’s email to Tom Abel-Smith is copied below:

From: Nicholas Park

Sent: 08 September 2014 17:01
To: ***** ***** Smith'
Cc: Margaret Pocock
Subject: RE: 42 Cornwall Gardens

Good Afternoon Tom Abel Smith

With regards ***** ***** email below.

Please find attached my report to Margaret re my findings when the internal dampness and the balcony above were inspected on the 27th. I can also confirm that those additional precautionary works outlined were undertaken and completed last Wednesday and Thursday.

You can see from photo 1 that an overflow pipe has indeed been introduced to the balcony. This means that, should the main outlet get blocked again in the future, the balcony will not be able to fill up to a point above the asphalt upstands. I also understand that Margaret has now instructed for the gutters to be cleared 4 times a year rather than our standard protocol of twice yearly.

I hope this information helps. If you have any further questions please let me know.


Nicholas Park
Building Surveyor

Quadrant Property Management Ltd
Kennedy House,***** London,W14 0QH
Tel:(###) ###-####8800

<photo 1.jpg>

With the repair work to flat 4’s balcony complete, the contractors now can set a timetable for the redecorating to my flat. This timetable however, is is the hands of the loss adjuster and the insurance company.

The insurance company have Bruce’s quote but require a second estimate in order to proceed. They have chosen their own contractor who will need access to the flat in order to provide an estimate.

There is no need for you to be inconvenienced by this visit. As I have made clear repeatedly, I am more than happy to attend and supervise contractors, Quadrant and/or Bruce needing access to your flat whilst you are at work. Alternatively, if you prefer to be present, then please let me know of your timings this week. The contractor will be able to advise me and the insurers as to whether the walls are dry enough for the redecorating to take place. It has only been two weeks since the second water leak and they have advised me that we may have to wait.

Following this, a loss adjuster will consider the claim in full and choose the Contractor.

If appropriate, he will also assess your claim for a deduction in rent. He will consider what is reasonable under the circumstances.

It is disappointing that you did not contact me before pursuing this course of action but please rest assured that I and the managing Agents are aware of the discomfort and inconvenience to you. The managing agents, their contractors and insurance adjusters are seeking to carry out the works as quickly as possible.

I will update you as and when information becomes available.

I hope you will agree that I have attempted to help where I can such as visiting the flat during the flood and trying to cover for you when access is required.

The flood was caused by circumstances outside of my control and through no fault of my own.

I cannot agree therefore that there has been any breach of my obligations as a Landlord. The nature of the event involves parties other than ourselves. For that reason alone you and I cannot dictate the timetable for remedy.

Please let me know if you require any further information.

Kind regards

Expert:  Remus2004 replied 2 years ago.
What i need to know is what is the loss of enjoyment? Please don't put yourself to detail. Just a very brief outline will be fine. What can she not do in this property that she would be able to do it normally?
Customer: replied 2 years ago.

She is too ashamed to have people over to the flat because the water staining in the living room is unsightly

Expert:  Remus2004 replied 2 years ago.
I wouldn't worry about that.
In fact, you are only under an obligation to do the work expeditiously. Nobody expects you to perform miracles. You can only do what is humanly possible and actually a delay of two weeks for this type of fault is really not that long.
In any event though, if we presume that you have been dilatory, she still only has a claim for a reduction in rent if she is being prevented from doing something that she would normally be able to do. Like, for instance, not being able to use a bedroom because the roof has collapsed.
If its just that the whole place looks unsightly and she can't have her friends over for dinner then she is not going to get a reduction of 10% for that at court when you have only been two weeks late.
You can always deduct this from her deposit at the end of the contract.
Can I clarify anything for you?
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69269
Experience: Over 5 years in practice.
Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

So do I go to her first retrieve the shortfall in rent and do I also pursue my neighbour for this shortfall for failing to maintain his property?

Expert:  Remus2004 replied 2 years ago.
You need to try to recover from her and deduct from her deposit.
You only have a claim against the neighbour if a court says that you are liable to her and thats not likely.
Customer: replied 2 years ago.

So finally just to clarify one other point. there is no right to deduct rent for disruption to her home whilst the repairs are carried out or for the two days in which she experienced the flooding.

Expert:  Remus2004 replied 2 years ago.
It depends on the level of the disruption but not if its just general inconvenience.
If she cannot live there because there is a gas leak for instance then that is different.
Customer: replied 2 years ago.

Thank you for your answers

Expert:  Remus2004 replied 2 years ago.
No problem and all the best.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile

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