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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 25095
Experience:  Senior Partner at Berkson Wallace
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I would like some advice on an issue concerning dampness in

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Hello,I would like some advice on an issue concerning dampness in a converted house where I am a shared freeholder.
The ground floor flat has had dampness issues for a long time. I bought one of the higher flats of the house a couple of years ago.
The owner of the ground floor (who is also a shared freeholder) has recently sent us a quote to do some damp work based on a survey conducted by the damp proof course contractor.
We would like to have an independent survey done, but the owner refuses to give us access to the flat: he will only permit the surveyor to come in without us.
The leasehold states that the lessee (owner of the ground floor) should allow the lessor (the owners of each flat) to access the flat with surveyor given sufficient notice.
We have asked the tenants and they have agreed to let us in.
My question is: are we (one of the freeholders and a surveyor) legally allowed to get into the flat if the tenant agrees to let us in, without the knowledge of the leaseholder?Many thanks for your help

Hello. Thank you for the question. It is my pleasure to assist your with this today.

Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

So neither of the freeholders live in the property?

and this owner has said you cant accompany your surveyor but the tenants are fine about it?

any idea why?

Customer: replied 5 days ago.
Thanks for getting back to me.
So the property is made up of 3 flats: 2 resident owners and the last one (the one with damp issues) has tenants.
The owner of the ground floor thinks that the only reason we want an independent surveyor is to "squash" the findings of the survey of the damp proof course (DPC) specialist who is advising a chemical DPC.
He would like to start the work as soon as possible (despite having tenants in the flat) and thinks we are just looking for excuses to delay any work.
The tenant has indeed confirmed that he doesn’t mind if I come in with a surveyor without their landlord knowing.

You are allowed access into the flat without notice or
permission provided it is an emergency and this is not an emergency.  It’s important, but not urgent.

I would suggest that you need to write to the leaseholder
threatening them with a court application to compel them to let you have access
and that if you do have to make a court application would include a substantial
application for costs against them on the basis that they are in breach of the
terms of the lease.

Assuming that this is an independent damp surveyor, then
unless you are a damp expert yourself, I can’t see why you want to be present
but by the same token, I can’t see why they are so adamant that they don’t want
you in the property unless of course they are paranoid or living in squalor
about which they are embarrassed.

Nonetheless, my answer remains the same.

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">It is often the
case  that a robustly worded letter from
a/your solicitor threatening a court application and an application for costs,
may resolve the issue without the need to go as far as court.

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">On your house
insurance you may have legal expenses cover that would pay for the legal cost
so it’s worthwhile checking.  Some do and
some don't.

<span style="font-size:8.5pt;font-family:"MS Sans Serif";
mso-bidi-font-family:"MS Sans Serif"">

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">I’m afraid that we
are specifically not allowed to take instructions from here.

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">If the site were to
be a source of potential clients, we would no longer be independent because we
would have an interest in pursuing litigation.
With no interest in pursuing litigation, we can be really objective with
our view is to whether something has a good chance or a limited chance of
success.

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">

<span style="mso-ascii-font-family:Calibri;
mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">In any event, for
logistical reasons you would be better using a local solicitor .

<span style="font-size:8.5pt;font-family:"MS Sans Serif";
mso-bidi-font-family:"MS Sans Serif"">

<span style="font-size:8.5pt;font-family:"MS Sans Serif";
mso-bidi-font-family:"MS Sans Serif"">

<span style="font-size:8.5pt;font-family:"MS Sans Serif";
mso-bidi-font-family:"MS Sans Serif"">

<span style="mso-ascii-font-family:
Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri;color:black;
mso-color-alt:windowtext">Thank you for letting me assist you with your legal
question.  I am glad that I was able to
help.<span style="mso-ascii-font-family:Calibri;mso-hansi-font-family:
Calibri;mso-bidi-font-family:Calibri">

<span style="mso-ascii-font-family:
Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri;color:black;
mso-color-alt:windowtext">I am not certain whether that answers the question
for you or not, but I am happy to answer any specific points arising from this.<span style="mso-ascii-font-family:Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:
Calibri">

<span style="mso-ascii-font-family:
Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri;color:black;
mso-color-alt:windowtext">It will be my pleasure to help you again either
further with this or any future questions you have<span style="mso-ascii-font-family:Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:
Calibri">

<span style="mso-ascii-font-family:
Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri;color:black;
mso-color-alt:windowtext">Kind regards<span style="mso-ascii-font-family:
Calibri;mso-hansi-font-family:Calibri;mso-bidi-font-family:Calibri">

<span style="font-size:8.5pt;font-family:"MS Sans Serif";
mso-bidi-font-family:"MS Sans Serif""> 

Customer: replied 5 days ago.
Thanks for that: I guess the remaining question for me is: if the flat has a tenant, should the notice be given to the tenant (who live in the flat and would be the inviting us into their privacy) or to their landlord (who do not live in the property, but is the leaseholder and 1/3 freeholder)?

<span style="font-size:11.0pt;line-height:107%;
font-family:"Calibri",sans-serif;mso-ascii-theme-font:minor-latin;mso-fareast-font-family:
Calibri;mso-fareast-theme-font:minor-latin;mso-hansi-theme-font:minor-latin;
mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi;
mso-ansi-language:EN-GB;mso-fareast-language:EN-US;mso-bidi-language:AR-SA">It
needs to be given to the landlord who should give it to the tenant but my
personal view is that I would give it to both and telll both of them that it has
been served on the other.

Stuart J and other Property Law Specialists are ready to help you
Customer: replied 5 days ago.
Very clear, many thanks for that!
Customer: replied 5 days ago.
one more question :)
can the tenant ask for a damp surveyor to come in without asking the landlord first?

It was my pleasure to assist you. Please come back if anything else crops up and needs clarification.

Thank you for trusting Just Answer, and of course me,  with your legal problem.