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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 27749
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I own a property which is leasehold and share of freehold

Customer Question

Hi,I own a property which is leasehold and share of freehold (25% split evenly between the four flats) The owner of the ground and basement property, here referred to as flat A, has been experiencing persistent problems with flooding and water ingress in the basement since the beginning of the year. The owner is himself a solicitor, and the other two freeholders are concerned about the way in which he has dealt with the problem, and about how he's communicating with the freeholders. I would like to seek clarification as to how best to proceed.The responsibilities of the freehold vs leasehold are slightly unclear, and only determined within individual leases, with no governing freehold document that we know of – is it likely that this exists somewhere, or is this a normal state of affairs? And can we legally request to view a copy of flat A’s lease?Is there a legal obligation for the owner of flat A to provide the freehold with reports of works and investigations that he has carried out with regard to the ongoing problem in the basement?
He shares with us only part of his correspondence with any specialist, copying us into his replies where he draws conclusions from their findings, rather than sharing what the findings actually were. He then bases what he deems the freehold responsibility on these self made conclusions. Are we within our right to request these reports before proceeding, and how is it best to approach this?Over the course of the last few months he has claimed the problem to be a leaking pipe, water run off from a neighbours badly designed guttering, a leak from my bathroom, and ground water. He is now requesting that we pay for a sump pump, so that it doesn’t effect the foundations (which fall under freehold responsibility) without providing any real evidence that this is necessary. What might we be liable for in this regard? We have not yet responded to his email but would like to do so with haste.We wonder if there is any connection between this request and the upcoming renewal of the house insurance policy in a month’s time – are there any pit falls regarding this that we should be aware of? What evidence would we be required to provide to the insurance company regarding this ongoing problem?We also wonder if there is any connection between his decision to move out and put this house on the market, without officially informing the freeholders. Claiming after a short time that the basement problems have prevented his sale, and has now requested to let the property out. Could this lead us into any legal problems down the line?Finally, the previous owners of flat A had submitted plans to the council, which eventually got accepted and the house was sold with these plans in place. They are due to expire at the end of the month.
These previous owners acted suspiciously when they were carrying out some preliminary works in the basement, and at the time we asked to see evidence of what they were doing, but were assured that they were clearing out rather than making structural changes (two skip loads of debris were removed from the site) Are we liable for not getting a survey done at this time to ensure their works hadn’t damaged the basement in any way? And should the basement be signed off by building control?We anticipate instructing an independent surveyor to assess the problem and advise how we need to proceed, and hopefully where responsibility lies. As well as possibly seeking legal advice as a freehold company to ensure that we are not being negligent.If you could answer the above questions and advise us as to how best to proceed, I would be most grateful.Many thanks
Submitted: 12 days ago.
Category: Property Law
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Expert:  Joshua replied 8 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years experience.

  1. I am very sorry to read of the above. May I ask if you are familiar with the terms of the lease (assuming all leases are in substantially the same terms which would be usual expectation), and whether the lease sets out the parts of the building for which the landlord is responsible please?
  2. Does the "landlord" of which I note you own a share, actively carry out maintenance, or just undertake in on an ad hoc basis as the need arises? Is service charge collected?
Customer: replied 8 days ago.
Hi, thank you very much for your response.1. My leasehold and share of freehold documents are contained within the lease, and set out the landlords responsibility as follows;
(aa) the structure of the building including -
(i) the roofs and foundations
(ii) all the load bearing walls or the Building or those forming part of the main structure whether external or internal
(iii) the timber joists and beams of the floors ceilings and roofs in the Building
(iv) the chimney stacks gutters rainwater and soil pipes of the Building
It goes one to talk about conduits, boundary fences/walls and aesthetic maintenance2. We manage such maintenance on an ad hoc basis as and when things occur, and pay per expense, the freehold company has no bank account and therefore holds no funds. I do wonder if we should update this, and each hold a fund marked for the freehold in separate accounts - would you advise this?We are arranging a meeting of the freeholders this week.Do you think we are wise to instruct a surveyor to inspect the basement without seeing the full reports of inspections carried out by the owner of the basement lease? One of the freeholders has expressed concern that if we pay for this, it could lead to us paying for everything. Your advice on this would be most appreciated.Many thanks,
Lindsay
Expert:  Joshua replied 8 days ago.

Thank you. In terms of some of your questions, the freehold will consist of a freehold title registered at the Land Registry and the constitution of the freehold nominee company registered with Companies House. However neither of these sources of information will contain much if any useful evidence as regards ***** ***** of liability of the freehold company. Rather this will (or at least should) be closely defined within the lease.

The lease will likely (though it should not be assumed) in addition to the structures you refer to above, also provide that the freeholder is liable for maintaining communal pipes not exclusively serving any given flat.

As regards ***** ***** freeholder is liable for the issues depends as you say on the cause. If for example the issues are caused by a failure of a dampproof course then the freehold may be liable, however the freeholder is generally only liable for maintenance of the defined items in a lease. A freeholder is not normally liable to upgrade a building - e.g. same example as above, if no damp proof course was fitted, a freeholder would not be liable for installing one.

As to whether to go to the expense of instructing a surveyor, it seems to me in the first instance, given that the downstairs owner has already obtained independent reports, that it is reasonable for the freeholder to say to the leaseholder that it will attend to any repair issues which are identified and in this respect can it please see the inspection reports as opposed to an editorialised version of them. If this is refused, then the freeholder would need to check the terms of the lease to see if it can pass on the cost of carrying out an inspection to the leaseholder involved - most leases contain provisions along these lines and if so could alternatively ask the leaseholder to make a payment to cover an inspection report on behalf of the freeholder. If it does not and the cost falls to all of you as leaseholders jointly then a decision will need to be made at a meeting as to whether the freeholder is satisfied the issues may relate to structure as to warrant incurring the expense.

Often damp issues in basement flats are caused by inadequate damp-proofing by the original developer that converted the ground/basement flat. Though obviously if it is a leak, then the position will be different and it will be a question of identifying the cause of the leak and establishing whether it is a communal pipe or pipe serving an individual flat.

Customer: replied 8 days ago.
Many thanks for this reply.
The problem that we seem to be facing is that the cause of the problem has thus far been attributed to varying factors. We had the drains inspected, cracks fixed, still the problem persists. He would now like us to pay for a sump pump without providing the necessary documentation to back up requirement for this, and if this will actually fix the problem - which is why I wondered about an independent report from a surveyor.
If we do face difficulties agreeing who has responsibility for what, can you advise as to the best way to proceed. Could we have a lawyer look over the lease and make recommendations?
Thanks
Expert:  Joshua replied 8 days ago.

The starting point would be to gain a clear understanding of the landlords responsibilities under the lease because from the lease you can determine both your rights as freeholder and liabilities and from which all other matters determine. From there it may be sensible to either insist on seeing the reports the tenant has obtained as a condition for taking any further steps or appoint your own independent inspector to determine the issue(s). The decision will derive in part from whether you can recover the full or only part of the cost of any inspection report from the tenant in questions and the extent of freeholder liabilities under the lease.