necessary notices and permissions for a boiler relocation in a flat

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    necessary notices and permissions for a boiler relocation in a flat

    Hi all,

    I hope I chose the relevant forum to post my query to - please forgive me and correct me if I am wrong.

    My rental flat's (one of 22 'executive-style' flats in a 2-block development built in 1999) boiler stopped serving hot water to my tenants a week ago. I had a boiler engineer come out straight away and, although it was an old and poorly regarded boiler he felt that it was worth spending £150 on parts and labour as he was fairly confident he could fix it. After ordering the part in, he tried to fit it a couple of days ago and it failed to resolve the problem. As such, I set about getting a new boiler sorted ASAP. I found an engineer I trusted and he could fit me in in a few days. However, the flat is a 3rd floor flat and the boiler currently resides in the centre of the flat and vents through the roof and he wasn't able to get a roofer within the next 2 weeks to come out. As such, the proposal is to relocate the boiler elsewhere (in the kitchen) and to put the flue through the outside wall.

    A majority of the other flats in my block have new flues venting through the wall. And certainly some of them were moved from the centre of the building (although I'm not sure the percentage), so there is precedence for doing it. However, I'm not sure whether permission was requested or granted. I did speak to the chair of the tenants' association and she suggested that no permission was necessary, but she wasn't 100% sure.

    My flat is managed by company F and thus I first got in touch with them to notify them and ask whether I needed any permissions. In turn, they said that it wasn't their domain and passed me on to the freeholder's agent, E, who I then contacted. They will not explicitly tell me if I need to give notice or if I need to obtain permission. They say that I need to pay a £195 admin fee, which will cover an interpretation of the lease and then, if necessary, a presentation of an application that I need to submit to the freeholder and the relaying of any response to me. This seems like smoke and mirrors tactics combined with money for old rope and I feel unjustly blackmailed - especially given the urgency of getting this resolved.

    I had a read through my lease and found the below clauses which seem to me to be the most relevant:

    From the Eighth schedule (covenants by the lessee), part one (covenants enforceable by the lessor and the manager)
    -----------------------
    "To repair and keep the Demised Premises and all Service Installations exclusively serving the same (but excluding such parts of the Demised Premises as are included in the Maintained Property) and every part thereof and all landlord's fixtures and fittings therein and all additions thereto in good and substantial repair order condition at all times during the Term including the renewal and replacement forthwith of all worn or damaged parts but so that the Lessee shall not be liable for any damage which may be caused by any of the risks covered by the insurance referred to in the Sixth and Ninth Schedule or for any work for which the Manager may be expressly liable under the covenants on the part of the Manager hereinafter contained."

    and

    "Not to cut maim or injure nor to make any breach in any part of the structure of the Demised Premises nor without the previous consent of the in writing of the Manager or its agents to make any alterations whatsoever to the plan design or elevation of the Demised Premises nor to make any openings therein nor to open up any floors walls or ceilings for the purpose of altering or renewing any pipes wires ducts or conduits not to alter any of the landlords fixtures fittings or appliances therein and not in any case to commit or allow any waste or spoil on or about the Demised premises."


    It appears I have a duty to promptly repair the boiler, but that I am not entitled under any circumstances to drill through the outer wall. Is this interpretation correct? Assuming my understanding of the second point is correct, am I setting myself up for failure by asking for permission to relocate the boiler to the outside wall and to flue it through the wall? - and in the process waste £195?

    Ignoring my interpretations - which I am sure, and hope are wrong - , the questions I want to try and answer, and would hugely value any help in doing so, are:
    1. Do I need to notify (and request permission of) the freeholder or its agent for this work? Or perhaps just the management agent (who referred me on).
    2. Given my tenants have been without water for 7 days now, how long should I wait for permission to relocate the boiler? And if none is given in this time, should I plough ahead with the install and apply retrospectively?

    A huge thank you in advance for any comments/advice.
    kind regards.


    #2
    Depends on what your lease says.

    If the post is still open for editing, please remove the names of all the companies mentioned.

    Comment


      #3
      Thanks, leaseholder 64,
      I've updated the post to remove the names of the companies.
      I believe I have provided the only relevant clauses in the lease.
      kind regards.

      Comment


        #4
        Hi,
        ​​​​​​I have performed another pass through the lease. I cannot find any other relevant clauses. I would greatly welcome any comments on where I stand and what I should should do.
        kind regards.

        Comment


          #5
          To me it is badly drafted. There is conditional permission to make major alterations, but there seem an unconditional ban on the minor changes you mention.

          For conditional permission, there is a statutory provision that improvements cannot be unreasonably refused, so they can only charge you reasonable costs.

          For an absolute ban, they can impose whatever conditions they like.

          My gut feeling is that £195 is not reasonable for boiler installation work by a GasSafe engineer. However, if my reading of the lease is correct, you are not covered by the implied not unreasonably refused condition, so they may well be able to make unreasonable charges.

          Note that some changes may well require £195 of work from the manager and their surveyors.

          I think you need a professional opinion on whether the written consent from the manager is limited to the layout changes, or applies to the making holes part, as well.

          Absolute prohibitions don't mean that you won't get permission, but rather that there is no certainty and that permission may be subject to arbitrary conditions.

          Unfortunately, my lease allows me to do all sorts of things in terms of running pipes etc., so I'm not used to leases that are as restrictive as yours.

          Comment


            #6
            You can get free advice on the interpretation of leases at https://clients.lease-advice.org/App...reSafety=False I don't think they will comment on whether £195 is reasonable, but they should be able to say whether or not the freeholders are restricted to a reasonable fee, in this case.

            Comment


              #7
              Does the lease say anything about paying fees for granting consents?

              Comment


                #8
                You are unlikely to get permission for a hole in the wall sooner than you can get a roofer to replace the roof vent.

                Comment


                  #9
                  Hi Leaseholder64,

                  Many thanks for your responses!

                  I was hoping that I miss-read the lease incorrectly, but you have confirmed my fears.

                  You mention that £195 may not be a reasonable fee. You also mention that because the change I propose may not be covered by the statute restrictions of reasonableness, I may have to pay an unreasonable fee and be subject to arbitrary restrictions (if I get do get permission). I have resigned myself to paying the £195 (which as you note, may, in some instances, be justified), but could, hypothetically, I end up paying significantly more than this (if I do manage to get permission..)?

                  My tenants continue to be without hot water (and I fear the heating is impaired, if not broken also - they are very obliging Thai people who have been very patient and reluctant to complain). What rights do they have with regards to being able to bathe and stay warm? Given the boiler needs to be relocated for the prompt re-reinstatement of hot water (and possibly heating) - which I think is required by the lease in the first clause of my original post (?), and I would have thought on human rights grounds - surely the freeholder is somewhat 'obliged' to grant this right, and with some haste, given the relatively minor nature of what is being asked for?

                  If I ploughed-on and had the boiler installed, in the interests of my tenants, where do you think this would this leave me - could I apply retrospectively for permission? I guess the landlord could tell me to remove it and make good, but do you think it would give him ammunition to charge me for the moon?

                  As you suggest, I will consult a lawyer on the scope of the agent's consents.

                  As you suggest, I will check with the LAS as to whether any reasonableness restrictions apply to any fees in this case.

                  I am glad you are not subject to such a minefield of a lease.

                  kind regards.

                  Comment


                    #10
                    Thanks, MdeB.
                    As per my response to leaseholder64, if we are talking about 2 weeks delay, surely this is against some form of legal requirement on human rights grounds (the rights to hot water and heat)?
                    kind regards.

                    Comment


                      #11
                      Hi lawcruncher,
                      I will run through the lease again and feed back, but I don't recall seeing any such content.
                      kind regards.

                      Comment


                        #12
                        You are required to make repairs in a reasonable time.
                        The soonest something can be done is almost certainly reasonable (and the alternative of trying to get permission that you might not is much less reasonable.

                        Ideally offer the tenant an alternative source of heating.
                        Hot water isn't something you can offer and it might be worth while giving a rent reduction as a goodwill gesture.

                        You can only do what you can do.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          thanks, jpkeates.
                          I just wonder whether reasonableness applies in the case of a lack of such (a) pivotal service/s as hot water (?). Obviously I'm asking for personal opinions :-)
                          kind regards

                          Comment


                            #14
                            Hi lawcruncher,
                            The clause that talks about paying fees is in relation to making applications to the manager or its agents - ie the changes mentioned in the second clause that required the agent's consent (layout changes, etc).
                            The clause is"
                            ON making application for any such consent as aforesaid to submit to the Manager or its agents such plans block plans elevations and specifications as they shall require and to pay the reasonable and proper legal and surveyor fees of the Manager in connection with any such application and to catrry out any work authorised only in accordance with such plans block plans elevations an specifications as they shall approve in writing making use of good sound and substantial materials all of which shall be subject to inspection and approval".
                            kind regards.

                            Comment


                              #15
                              We can conveniently divide the covenant into three parts:

                              A: Not to cut maim or injure nor to make any breach in any part of the structure of the Demised Premises...

                              B: ...nor without the previous consent of the in writing of the Manager or its agents to make any alterations whatsoever to the plan design or elevation of the Demised Premises nor to make any openings therein nor to open up any floors walls or ceilings for the purpose of altering or renewing any pipes wires ducts or conduits not to alter any of the landlords fixtures fittings or appliances therein...

                              C: ...and not in any case to commit or allow any waste or spoil on or about the Demised premises
                              .

                              Part A is an absolute prohibition.

                              Part B is a qualified prohibition and the law says that consent cannot be unreasonably withheld.

                              Part C is not relevant.

                              The question is whether creating a flue in the outside wall comes under part A or B. If we take part A as a whole its aim is clearly to prevent compromising the structure of the block. Part B recognises that by referring to "openings". If it is argued that the position is uncertain it is resolved in the tenant's favour. For the record I should mention that there could be a snag if the lease grants a "shell demise", that is it only includes the interior surfaces of the external walls.

                              There seems to be some confusion on the landlord/management side about who grants the permission. The lease says it is "the Manager or its agents". The capital "m" suggests that the Manager is a party to the lease. Whoever that is is the person who grants the consent and not the Landlord. So who is the Manager?

                              You write to the Manager and make the following points:

                              The boiler is broken.

                              It is your obligation under the lease to repair or replace it.

                              A reputable boiling engineer has advised that the boiler needs replacement and that the best option is to make a flue in the external wall.

                              If you make the flue without consent you will be in breach of covenant.

                              Given (a) the boiling engineer's recommendation and (b) that several other flats have had boilers with external flues installed, it cannot be reasonable to withhold consent.

                              The occupants have been without hot water for x days. The matter is therefore urgent and you are entitled to insist on an immediate response.

                              The issue is totally straightforward. No investigations are required. There is no justifcation for delaying a response.

                              You owe an obligation to the occupants to replace the boiler. If they claim compensation you will look to them (that is the person you are writing to) reimburse you.

                              Comment

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