Freeholders breach of the lease

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    Freeholders breach of the lease

    We had a surveyor in last year in April 2018 which said that the outside render was now porous and needed to be repaired as a matter of urgency and should be a priority. At a meeting they voted to wait for a year until people had saved up the money and also they needed to have an asbestos test done. I was dismayed as I had already had to have work done inside to stop damp penetrive damp from coming into my flat. Leaving it for a year meant another winter and rain etc. Well in the end I had to get in a workman to tank the walls as water was coming in all over the place. I have said I will charge this to the company ie the Freeholders but they have said they could not do it any earlier because they needed to save up the money, however I myself have had to get a loan to pay for everything and it has been known since 2011 that there was a problem with penetrative damp.

    The roof has to be done as well, however there were other options which I put forward and that was to do the render first by an expert company specialising in outside render but they wanted to find one builder to do the lot and that has been difficult.

    My point is that how can the Freehold company who is already in breach tell me that they are not going to pay me for the work I have had to have done; It was urgent as I have a tenant in it and there are new laws regarding health and safety, and regardless of wanting to have the whole building done at once, it has meant that water has poured into my flat.

    Who is right. I am sure they are liable.

    Next door has had to have the ceiling done because of the damp coming in, but even though he denied initially there was a problem stating that the ceiling was wet because of a flood form the above flat, it has tuned out that the water coming in from outside had rotted the beams and they are going to pay him for the work even though he only ever inspected the flat which is let twice in 16 years.

    What is the nature of the freeholders? Why do they have limited assets? In the worst case, they are a residents's management company, in which case they have very little leeway, as they will have very little money of their own and very little real security for any loan. They are also unlikely to be willing to force some of the leaseholders to sell their property.

    Most leases don't allow for borrowing. At the very least, the freeholder is likely to be unable to recover interest on any loan.


      Normally, a freeholder has a duty to repair and lack of funds cannot be used as an excuse for delaying works,

      Whether or not the lease permits him to borrow monies and charge the cost of borrowing to leaseholders is irrelevant.

      You appear to have a valid claim against the freeholder and you will be able to object to any increased costs caused by the delay.

      You will need to consider the financial position of the freeholder before making a claim or deduct the amount from charges raised by him.


        Sorry but a different view. Does your lease permit improvements ? Tanking may well be considered additional to repair and maintain. The interior of the wall is usually considered the leaseholders responsibility. Tanking would solely benefit your flat, not the building. It is likely to increase condensation. The water not going in to your flat has to go elsewhere in the wall. The company would be accepting responsibility to maintain the tanking.
        as to claiming cost of tanking I would not be confident. Where the company given all the relevant details before ? Does your lease require you to have permission ? If it does, and you haven't perhaps you may be the one in breach.
        I am sure you will have reasons to be aggrieved. I am not a legal professional and not unsympathetic. However, things rarely are straightforward. I suggest contacting LEASE for free legally qualified advice. I have always found them excellent.


          What does your lease say about emergency repairs?


            Check your are normally responsible for the internal parts of your flat up to the plaster/decoration. You are not normally responsible for the bricks, this comes under the Freeholder responsibility..did you ask a director to inspect and get a surveyors opinion? Who said it was penetrating damp?


              We are all paying £20,000 in to the kitty when the work gets going. No freeholder can rustle up £100,000. How could I let water come into my flat because the outside render is cracked and falling apart. No the lease does not allow for improvements. The water is coming in through the render because it is in a poor state of repair and I could not carry out the work myself to the outside of the flat, so I had to concentrate on stopping water coming in through tanking. They knew I was going to have to tank it yes, but I had to because they wanted to wait a year to get the money up.


                I agree with your sentiments. Unfortunately what is legal sometimes is conflict with commonsense and justice.
                Are you required to have approval before starting work ?
                Unless you can tick the boxes you may well have problems.


                  No freeholder can get £20k from all the normal leaseholders. I imagine 10-20% would be in financial crisis for just a £500 excess. I don't think there is any reasonable hope of getting the funds together by next year either, unless leaseholders are put in a position where several have to sell up and move to a cheaper area. (5-10% are probably paying off debts by instalments).

                  There will be big corporate freeholders for which £100k is peanuts.

                  Did you get the property surveyed before you bought it?


                    The freeholder seems to have had ample time to plan the works, arrange finance and agree payment plans with the leaseholders. It has no excuse for failing to comply with its obligations. You have every right to take action to protect your property and the reasonable cost is recoverable from the freeholder, subject to any improvements. The freeholder is not entitled to recover costs which have incurred after he was aware of the works ie additional damage, costs in excess of what it would have cost at the time.

                    Does the lease permit a reserve fund to be operated? What does the lease say about budgets and surpluses?



                      There is nothing in the lease in respect of emergency repairs.



                        Yes I have had the flat for 30 years, it it was in 2011 that the problems of penetrating damp became known, but the people in charge at the time chose to ignore it. I even got in my own surveyor but they were immune to what he said. Finally I insisted on a surveyor checking the whole building and he found that the roof and all the render is in a very bad state and that work should begin as a priority, but they didnt, the choose to wait for a year so they could safe up. However having said that nearly all the lessees are in high paid jobs.



                          No there is no allowance for a reserve fund. However I have always put away a few 100 a month just in case of any disaster. The other leasses are all high earners, they will not have a problem rustling up the money. If they had got on with it in 2011 it would have been a lot cheaper, but they didnt. Thank you for your reply.



                            They are in a position. One is worth a god few million, one is a well known artist, the others are all in well paid jobs and there are two of them whilst there is only one of me!


                              Whether or not you can 'win' a reduction on your service charges by offsetting the costs of tanking your flat against the cost of the damp-proofing works might depend on who puts forward a more convincing case in a tribunal - you or whoever represents the freeholder.

                              It's possible that you might have had a better case if you had done nothing and then claimed for the cost of all internal repairs that were necessary, and any loss of rent + associated costs that you had incurred after the damp-proofing work had been completed.

                              The other problem that you might have, as this is a RMC, is how any shortfall in funding will be covered, if you do get an award for the cost of the work that you have had done.


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