shared freehold but one flat is not paying

[mmmbop]

Hi,
I'm a newbie to this forum so hopefully I'm posting OK.

I live in a Victorian house converted into 3 flats & we each own 1/3 of the freehold.
The owner of one flat (I'll call him Mr B) has said no to our previous request of forming / employing a management company & also to a provision for repairs fund, so we do not put aside money for repairs at present & agree them between ourselves, which have been small to date. We are on the same buildings insurance policy.

I had 2 leaks in my flat from Mr B's flat (which he rents out) within a short space of time. I informed him via email (copying in the other share of freeholder, 'Mrs. A') but he proved very unhelpful. After many emails, he finally gave me his plumber's number, who informed me the repairs in the bathroom had been done. As the cost was below the policy excess, I paid for the ceiling to be repainted & asked Mr.B for the money, which he has refused to pay. I noticed a crack in the stone tiles below the leak (which appeared straight after the leak, which I also informed the other freeholders of.

Fast forward a few months & a few more tiles under the leak have cracked & need replacing and there is a big stain on the wall under the leak. The costs incurred due to making my bathroom good following the leak are now substantial (well over the policy excess) & Mr B will not agree to pay them, attend meetings, or even pay the buildings insurance excess share (Mrs A said she would pay her share) - he has said in an email "take me to court".

Mr B's original 'plumber' - who seemed quite shady - has disappeared & I have no documents relating to his repairs. A new reputable plumber has said there is no evidence of new plumbing repair work being done but the grouting is new & there are water marks down the wall above where the leak was. He said he didn't know what the black marks on my wall were due to.

All freeholders agreed to split costs of maintenance work via email a few months ago which included my bathroom redecoration following the leaks. As I don't have evidence for the bathroom repairs, it is doubtful whether I can put in through buildings insurance, and Mr B is not paying for any repair work whatsoever.

I don't want to pursue the small claims court as a first recourse but I don't know how to proceed. Surely there must be a legal recourse, even if its just for Mr B to pay third of the costs. Mrs A is agreeing & this doesn't affect her at all. We have some substantial roof maintenance work coming up so Mrs A & I are worried Mr B may shirk his responsibilities on this too.

Thanks,
Mrs C

[AndrewDod]

There are several issues here.

In terms of the leak I am afraid that the way the system works is bizarre -- you the victim are entirely responsible for rectifying the damage caused unless he (above) did it deliberately. The whole area is a bog. He can do it over and over again. You may be lucky in a court but I wouldn't count on it.

What do your leases say about how the building should be run, because this seems a total mess.

The other leaseholders are not responsible either.

[mmmbop]

Thanks for your reply. The lease states "not to permit or suffer any person to do any damage to the building or any part thereof or to the fixtures, fittings and chattels therein contained and forthwith on demand by the lessor to pay to the lessor the cost of making good any damage".

[AndrewDod]

Yes... but your flat and it's decorations/ plastering etc (your demise, or at least most of it) is not the "building" in terms of the lease.... The fixters etc referred to will be the freeholder's fixtures and chattels..

[jpkeates]

The owner of the property upstairs is only liable for the damage in your flat if it is due to their negligence (or some deliberate act).
It's almost impossible to prove negligence, unless there are a series of near identical events - or you're very lucky.

And most often it isn't negligence, pipes wear and things break.

If there were two leaks, you might have a claim for the second one, just on the basis that more than one leak might be negligence.

[mmmbop]

Thanks for your reply. As we have agreed to make good the repair to my bathroom following the leaks via email as part of planned maintenance work, surely we can go ahead even though Mr B is being difficult & not paying. Two out of three flats that own the freehold have agreed to it (& the 3rd flat has agreed 'in principle').

Its not clear to me the legal ramifications of getting repair / maintenance work done but if it's been agreed, then I don't see why it's possible for one flat to be admonished of their responsibility to pay anything. This is wider than just the repair to my bathroom following the leak. Wanted to get a bit of feedback before asking a lawyer.

Re my bathroom, I'm considering a no-win no-fee scenario as I don't see why I should have to go into my overdraft to repair the damage done to my bathroom.

[AndrewDod]

You can't agree to do things that are not within the remit of the lease(s) to agree. Your private fittings have nothing to do with the lease.

So when the flat above fails to pay a service charge....

[mmmbop]

There are things on the lease that are not implemented though - e.g. ground rent not collected. Clearly the flat upstairs has damaged my flat, which the other flat has seen & agreed on. Not every situation is covered in the (outdated) lease. As myself & the flat upstairs own the majority of the freehold, & the repairs were agreed between all 3 flats in principle via email - then just wanted to check the legal position.

[AndrewDod]

The lease only covers what it covers and that is all you have. The "legal position" is derived from the lease. Majority does not rule (excepting stuff like the colour of the paint in the common parts)

I'm not unsympathetic - just telling you that the system is saying you don't matter

One has to ask WHY the lease is not being implemented...... You can't for example have a "provision fund" if the lease does not say that you can have such a thing. And if you have a wayward leaseholder it is VITAL that you stick to the lease.

[mmmbop]

We’ve never had any substantial repairs til now, nor done any significant maintenance work, so have not enforced the lease terms to keep good relations.
But this appalling behaviour by my upstairs neighbour has crossed the line. He had also made us incur other costs recently.
I don’t see why we would only have rights if we were in a management company. Are you a lawyer?

[AndrewDod]

I DIDN'T SAY you need to set up a company. You do need to obey the lease though - for when you need those substantial repairs - which you will do.

Not sure my legal-training status has any bearing. But know a lot more than 99% of general lawyers about landlord and tenant law, and a lot less than lawyers who are specialists. But that has no bearing at all on my knowing that you need to obey the lease and on my knowing that I have vast experience of what happens when you don't (having been at FTT many times). Cheers.

[mmmbop]

Don’t get me wrong - I really appreciate your help. We do have a substantial repair coming up, which is specifically covered in the lease.
For now though, I’ll go through the lease again to see if I’ve missed anything. I’m contacting Citizens Advice too.
I want to see the legal position we’re in re being majority share of freeholders etc. I get the whole lease thing but the position re my repair work seems to be a grey area.

[andybenw]

If you own directly on the title deed then you require unanimous agreement to move forward on anything. Majority voting does not suffice. When it works well, it works very well as you can chip in 'as freeholders' for repairs and pretty much ignore service charges and lengthy s20 procedures(some would argue that is a bad thing as you essentially bypass parts of the lease). When it doesn't work well however, then you are unfortunately at a standstill that is extremely difficult to resolve. You cannot even begin the likes of s20 without all freeholders agreeing and signing on the dotted line, all freeholders need to sign to demand service charges etc etc etc.

[Tipper]

Your buildings insurance should cover the repairs needed due to a leak.

What it won't cover is repairs to the leak itself. Make a buildings insurance claim.

I had new floor coverings, ie wood parquet flooring lifted and stained, when my water stopcock leaked over a period but they did not pay for the repair to the stopcock itself.

[AndrewDod]

If you own directly on the title deed then you require unanimous agreement to move forward on anything. Majority voting does not suffice. When it works well, it works very well as you can chip in 'as freeholders' for repairs and pretty much ignore service charges and lengthy s20 procedures(some would argue that is a bad thing as you essentially bypass parts of the lease). When it doesn't work well however, then you are unfortunately at a standstill that is extremely difficult to resolve. You cannot even begin the likes of s20 without all freeholders agreeing and signing on the dotted line, all freeholders need to sign to demand service charges etc etc etc.

It isn't actually fundamentally different to the problem faced by a small lessee owned company where lessees are not named on the lease.

The freeholder (and shareholders) can decide to ignore the lease. And that can work great. Until one decides not to pay and correctly invokes the lease and the law.