Leaseholder/ Freeholder maintenance obligations when not explicitely defined in lease

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    Leaseholder/ Freeholder maintenance obligations when not explicitely defined in lease

    Dear all,
    Can anyone help. I live and own a leaseholder and a share of a freehold (50% via company) of a converted maisonette The other leaseholder owns the other 50% of the freehold (half the company). I have the ground floor he has the first floor.
    He insists that windows repainting and painting is the responsibility of each individual leaseholders rather than the freeholder. He intends to repaint his windows and request access to our patio for doing so. In principle I have no issues, however, if I agree to this I may forego the possibility for us to request the freeholder to pay for changing all our windows that are in bad state as I would have indirectly agreed that the windows are leaseholder responsibility.
    The lease states that “outside wood” is to be maintained by the leaseholder. No mention of windows. Can outside wood be interpreted as windows? Is that the frame or the glass? He is threatening to sue me to not give him access....


    "Once in every third year of the said term and also during the last year thereof to paint at a time and in a colour to be approved by the surveyor for the time being of the Lessor all the outside wood and iron work of the demised premises and all additions thereto with two coats of good quality paint in a proper and workmanlike manner"

    "To permit the Lessor and the tenant or occupier for the time being of the upper maisonette or any person or persons authorised by them respectively in that behalf to enter upon the demised premises on reasonable prior notice except in the case of emergency for the purpose of constructing laying down altering repairing cleansing emptying or maintaining any sewers watercourses cesspools gutters drains water pipes electric wires or gas pipes in connection with or for the accommodation of adjoining property and in particular the upper maisonette doing as little damage as may be reasonably practicable to the demised premises but making good any damage caused and restoring the surface.."


    Thanks all!!!

    #2
    You can't own a leaseholder; that would be modern slavery! (unless they are a company.)

    I assume the lease predated aluminium frames, so the intent would have been to include repainting the window frames (you don't normally paint PVC).

    Your quote doesn't say the wood is maintained, only painted.

    If really not explicitly defined, the lease is probably defective. However, you haven't quoted the likely relevant part.

    I think that it is very rare for the freeholder to be responsible for the glass, but much more mixed for them to be responsible for the frames and other non-glass parts.

    It is much more common for painting to be a freeholder responsibility, so I think that hints you are responsible for repairs.

    If yours are failing and those in the upper part aren't that suggest to me that the upper one were replaced by their leaseholder, so you are morally bound to pay for your replacement. If both are equally bad, I don't see what difference it makes except that the freeholder can ensure a uniform style.
    Last edited by leaseholder64; 01-07-2019, 13:05 PM. Reason: Qualifying statement.

    Comment


      #3
      Thanks for the response. Indeed, we do not support modern slavery and do have a lease! The wording state indeed painting, not maintaining. The other party wants to paint the windows. SO does outside wood means windows you reckon? Windows are not mentioned anywhere at all (unless as an other word such as the below clause ?

      "THE Lessor HEREBY COVENANTS with the Lessee:At all times during the said terms (subject always to the contribution on the part of the Lessee hereinbefore covenanted to be paid bythe ,Lessee) to repair maintain and rebuild the roof foundations and main structure of the building and of the expenses of making repairing maintaining supporting rebuilding and cleansing all ways passageways pathways sewers drains pipes watercourses water pipes cisterns gutters party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessee in common with the Lessor or Tenants or occupiers of the
      premises near to or adjoining the building including the tenants or occupiers of the upper maisonette".

      The word windows never appears in the lease....nowhere!

      Ok, the previous owner of our flat changed the windows in our flat but they are failing...Our neighbour upstairs's windows are not great either!





      Comment


        #4
        Does the above clause suggest that the freeholder is only responsible to maintain what can be used by the other leaseholder? All the rest is the resoonsibiity of the leaseholder? Is that not odd....

        Comment


          #5
          Not at all. Generally the aim is to make the leaseholder responsible for as much as possible. The freeholder is still responsible for the main structure. That holds the whole building together, so serves all the leaseholders. The question is whether windows are part of the main structure.

          Comment


            #6
            The first lease clause quoted seems to make it clear that "outside wood" is the responsibility of the leaseholder to maintain. If the window frames are wooden that would make them the responsibility of the leaseholder (the external parts of the frame at least).

            This is confused somewhat by the clause quoted in post 3, because previous lands tribunal cases have considered window frames to be both part of the external parts of the building and part of the structure.

            In this case I think that it would therefore be important to look at all parts of the lease in context.
            However, if the clause referring to painting in every third year is clearly the leaseholder's responsibility (which it seems to be), then painting the frames is down to the leaseholder, even if repair of the frames is not.




            What has been done in the past may also be an important consideration.
            Firstly, if the repairs needed to your frames are a result of decay due to inadequate protection through painting, it can likely be argued that the costs of replacing the frames are your responsibility because it is the leaseholders failure to keep the frames properly painted that led to the need for repairs.

            Also, if it has been accepted that the windows are the responsibility of individual leaseholders in the past, it is likely to be fair and reasonable to continue to treat them this way.

            So why is it only your windows that are in a bad state? Have your windows been poorly maintained (even though ground floor windows should be far easier, and less costly, to maintain than first floor windows)? Has the other leaseholder already replaced their windows (and if so, did they pay all the costs or was it split)?

            Comment


              #7
              Thanks all.
              Macromania,
              The windows seem to only have been changed during extension works. The windows that were not affected by the extension (because they were added ) had been changed by the respective leaseholders. Presumably, this may suggest that the leaseholders assume it is the responsibility of the freeholders to replace.
              As for your questions on why only my flat windows are damaged, it seems the wood quality of the new windows is poor.
              I contacted the Leaseholder advice centre who suggested that case law included windows as part of of freeholder obligations if they were not explicitly defined in the demised property of each flat.

              Comment


                #8
                Case law does seem to include windows as a structural part of residential buildings, meaning that repair/replacement is likely to be the freeholders responsibility.
                In your case though, especially as you state that "it seems the wood quality of the new windows is poor", it is likely to be arguable that the responsibility falls on the company who supplied the windows (especially if they were installed fairly recently), or whoever arranged for them to be fitted. If the windows were selected, and the purchase/fitting arranged, by the leaseholder (including a prior leaseholder) then it may be arguable that the responsibility to replace them also falls on the leaseholder.
                If no-one involved has any evidence that past practice has been for leaseholders to maintain the window frames themselves, and repair them if necessary, this would likely put you in a better position to argue that the freeholder is responsible.

                Painting of wooden window frames is clearly the responsibility of individual leaseholders, and you therefore have no option to withhold permission for the other leaseholder to do what is necessary to paint his. If you don't provide the required permission, you are opening up the possibility of him being entitled to have you pay at least a proportion of repair/replacement costs for his window frames, even if it is decided that he has no legal responsibility to contribute towards the replacement of yours (refusing to allow painting of his frames could directly contribute to decay of the wood).
                Presumably you have ensured that your own frames have been painted every three years as required by your lease? If you haven't, this would allow the other leaseholder to argue that replacement of your window frames is at least partially a result of your own negligence in maintaining them.

                Comment


                  #9
                  Thanks Macromia. You raise fair points but the windows were installed in 2010 and the most damaged of them all is the one below the scaffolding the other leaseholder had put over my garden ( using neighbour's land). I believe the bad state of that window is mainly due to that scaffolding. With regards to the other window, it is clearly not great quality. As the previous owner installed them over 5 years ago, I am told there is no recourse with the supplier.

                  Comment

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