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F E Smith
F E Smith, Advocate
Category: Property Law
Satisfied Customers: 11022
Experience:  I have been practising for 30 years.
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Would it be possible to ask a question related to a 2 year

Customer Question

Hello, good afternoon. Would it be possible to ask a question related to a 2 year breach of lease by the freeholder of a residential block in SW London? Thank you, ***** *****
Submitted: 4 months ago.
Category: Property Law
Customer: replied 4 months ago.
Hi, the situation is as follows: I own one of 28 4 year old flats in a new build block in Teddington, SW London. We have a communal hot water and heating system..it consists of 2 boilers (main and backup) and all the pipe work of course to the flats. 2 years ago the first (main) boiler was condemmed.. a survey found that the whole system was installed incorrectly at the outset..the boiler engineer produced a report and priced the remediation works at £70k. The managing agent at the time advised firstly that the freeholder would pick up the bill.. then many months later they advised that they had changed their minds and it should go through the building defects insurance.. they advised that they had submitted a claim under that policy. That was probably 12 month ago. Recently (1 month ago) the freeholder changed the managing agent.. but as part of the handover to the new agent it was discovered that no insurance claim was ever submitted. So here we are.. 2 years on.. and now the 2nd boiler is close to being condemmed too..expected within the week. We will be without hot water and there will be no plan to rectify the situation. So I would like to know where we go from here.. The owners of the flats in my block are keen to take legal action against the freeholder and force them to pay for repairs asap. The new managing agent has offered their legal service (at a cost of course) but in my mind there are conflicts of interest here.. afterall, the freeholder employs the managing agent. Yesterday the managing agent advised that a claim could not go through the defects building insurance as the policy doesn’t cover mechanical equipment..so even if a claim HAD been made a year ago by the previous agent it would not have been sucessful. Any advice would be much appreciated. Regards, John
Expert:  F E Smith replied 4 months ago.

Hello for clarification - so all the residents are onboard with taking legal action is this correct?

Customer: replied 4 months ago.
Hi. In theory yes as the only other soluion it to pay ourselves (possibly 3 or 4k each). I suppose it depends on advice we recieve as to the best course of action and the chances of sucess. In my mind there are two opttions.. sue the freeholder or the developer. The freeholder has advised (many months ago) that it is not their problem and that any action should be against the developer - and they seem unwilling to assist us with that.
Expert:  F E Smith replied 4 months ago.

Thank you. The good news is that with 28 flat owners, all bringing an action against the freeholder the cost risk per owner is going to be minimal. The bad news is that if anyone refuses to join in the action, they still get the benefit of the outcome without the risk of having paid any money or the cost risk if the action failed for any reason.

When you said that the managing agent has offered their legal service, I thought that was somewhat bizarre in exactly the same way that you have done, conflict of interest.

Assuming that it is a condition of the lease that the landlord provides heating, it may or may not be something which he is obliged to carry this cost and he may be able to pass that on as a service charge.

There is the other issue here and that is that the builder is in breach of the provisions of the Supply of Goods and Services Act and the Sale of Goods Act for supplying goods not of satisfactory quality and which is not fit for purpose and for failing to carry out the installation with reasonable care and skill. That is something to the freeholder to take up with the builder. He is also in common law breach of contract.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 4 months ago.
Hi and thanks for the swift response. In answer to your question, yes, in the lease it specifically states that the freeholder is responsible for maintaining the communal heating/hot water system. Its interesting to read about the Supply of Goods and Services Act and the Sale of Goods Act. So in your opinion, if (and its looking highly probable) the developer is in breach of one/both of those laws.. would the freeholder have any legal responsibility to advise the developer of this (that they are in breach)... or... would it be a case of the leaseholders having to go directly (via a solicitor) after the developer? It doesn't seem right, somehow, that the freeholder has no obligation to go after the devloper being as it was the freeholder who originally 'employed' the developer? Thanks again. John
Expert:  F E Smith replied 4 months ago.

The developers clearly sold a property which is not of satisfactory quality therefore in my opinion, he is probably in breach of those provisions. Of course, the freeholder will have to advise the developer of this and if the developer will not resolve the issue then it’s a case of the freeholder taking the developer to court.

The leaseholders pursues the freeholder for breach of the terms of the lease and the freeholder can either choose to take it on the chin or pursue the developer.

Before you go (you can come back at any time), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.

FES