Problems after removal of staircase

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    Problems after removal of staircase

    Hi Landlord Zone 4.04.2021
    I am new to this blog and would like some advise. I own a ground floor maisonette (GFF) in a building which consist of a first floor (FFF ) and ground floor maisonette. It was a semi detached conversion in the 1930’s.
    An external fire escape metal staircase serving the FFF balcony was attached to the ground floor rear extension wall. The FFF balcony was for the exclusive use of FFF and so was the staircase.
    The staircase was defective and metal steps were failing off. There were structural cracks to ground floor rear extension(GFRE) wall caused by the staircase at the junction of where the staircase was attached. The cracks caused water penetration and damp to GFRE.

    I notified Freeholders(FH) and FFF lessee for a few years of structural cracks and damp. Both did nothing. The damp was worsening and needed constant damp treatment and decoration.

    About two years ago the staircase was removed by FFF lessee who said he obtained advise and consent from FH. Removal caused further extensive damp, missing brickwork and further structural cracks to GFRE wall. GFRE’s ceiling lies underneath the concrete balcony roof.

    Two years later, FH and FFF lessee agreed to repair GFRE damage caused by removal of staircase. Whilst their contractors were carrying out repair, it was noticed that the damage was more extensive than they thought. FH’s engineer and insurer’s reports reveal that removal caused crack damage to the concrete balcony roof, also there were additional layers of asphalt on balcony roof and leaving the cracked roof open to the elements caused water penetration and damaged and weakened the metal stell beams. FFF uses the balcony and for storage of heavy items.

    FH alleged that it was my repair obligation to repair balcony roof. I have no access to balcony roof nor roof is demised to me. FH indicated that they provided a licence for these works at the time of agreeing to carry out repair but now denies this. It appears no building regulation consent obtained, no engineer’s involvement nor any sign off of the removal.

    Both flats were insured by FH at the time when staircase was removed. Insurer now say they will not pay for repairs as the claim was made too late. The near collapsible roof has been left un repaired for 14 months and GFRE closed off and supported by metal beams.

    Local authority building control( instructed by FH) has registered a charge of unauthorised work against GFF.
    My position is that FH granted consent, FFF lessee removed it causing damage and they have to put it right. Also there is an agreement to repair but repair stopped as they assert repair was only to the missing brickwork and cracks. This was also an insured risk which FH failed to pursue timely. There has been a history of disputes between GFF and FH. FFF carries out work in breach of his lease and causes ongoing nuisance to GFF.

    FH has made a S27A application to the FTT asking
    1. if GFFF owns the bottom part of the roof of GFRE and the balcony roof and if not who owns the roof slab in its entirety.
    2. Which lessee’s liability to repair slab. FH Cost of repair is not a service charge cost but who owns roof slab, but only on who is liable for which roof slabs and apportionment of costs of repair.
    3. FHH asserts Costs of repair, is not a service charge costs that such service charge costs are to be paid as to 50% each by the two leaseholders or should be determined otherwise.
    a)FH’s repairing covenant of the GFF Lease provides “At all times during the said term to repair maintain support rebuild and cleanse and to pay and contribute a rateable proportion of the expense of making repairing supporting rebuilding and cleansing all ways passageways pathways sewers drains watercourses water pipes cisterns gutters roofs party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessor with the Lessees and the tenant or occupiers of the premises near to the demised premises or of which the demised premises form part…...”

    b)GFF lessee repairing covenant provide, “From time to time and at all times during the said term well and substantially to repair uphold support cleanse maintain drain amend and where necessary rebuild the demised premises and all new buildings which may at any time during the said term be erected thereon by the Lessees and all additions made to the demised premises and the fixtures therein and all party and other walls and fences sewers drains pathways passageways easements and appurtenances thereof with all necessary reparation cleaning and amendments whatsoever.

    c) GFF lessee provides,” At all times during the said term to pay and contribute a rateable or due proportion of the expense of making repairing maintaining supporting rebuilding and cleansing all ways passageways pathways sewers drains pipes watercourses water pipes cisterns gutters foundations party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessees in common with the Lessor and lessee of the upper maisonette or the tenants or occupiers of the premises near to or adjoining the demised premises or of which the demised premises form part such proportion in the case of difference to be settled by the Surveyor for the time being of the Lessor whose decision shall be binding and to keep the Lessor indemnified against all costs and expenses aforesaid”.

    FHH has now served a S20 Notice for balcony roof repair.
    1. I would like to know if I am liable to pay for damage caused by the removal of staircase
    2. Does Lessee clause c require GFF to contribute to roof repair
    3. What is FH’s liability in regard to the roof damage and his roof repairing covenant
    Sorry about the long mail. Thank you very much. Chitty


    #2
    Local authority building control( instructed by FH) has registered a charge of unauthorised work against GFF.
    Nowhere in that essay does it mention any work being carried out by GFF?

    Is that a typo, or are we not getting the full story despite the long post?

    PS. The FH could not 'instruct' building control to do something.
    They could complain something was against building regs. and BC may then decide it's serious enough to charge.

    Comment


      #3
      No. GFF did not carry out any work to damage caused by removal of staircase. Staircase serves FFF and its balcony. Staircase and Balcony is for the exclusive use of FFF and its occupiers.
      Staircase belongs to FFF and removal done by FFF and licensed by FH. FH now denies he licensed work but GFF has emails confirming consent/licence was given by FH. FH's enginner who inspected cause of damage, asked for BC to be present before he carried out invasive inspection.

      Comment


        #4
        Sorry if I'm being a bit slow/thick here.

        But if the GFF has not had any work done then how can building control register a charge of unauthorised work against GFF?
        ie. What work are building control saying was unauthorised?

        Comment


          #5
          unauthorised removal of a external metal fire escape staircase which was attached to GFF rear extension but served FFF. removal caused crack damage to the balcony roof slabs rendering the roof to imminent collapse. Bldg regs consent is required to ensure bldg works complied with structural safety etc. An engineer should have inspected and sign off is required for safe removal of metal staircase. But FH did not ensure FFF lessee carried out removal with all the necessary requirements. FFF also did not have contractor indemnity insurance for the damage. GFF is left with a cracked concrete roof and the rear extension is closed off and uninhabitable

          Comment


            #6
            Originally posted by nukecad View Post
            Sorry if I'm being a bit slow/thick here.

            ...
            It's not just you, I'm finding this difficult to understand as well.

            If 'GFF' did not removal the staircase and has not carried out any other work, building control have no reason to register a charge of unauthorised work against 'GFF' - so either building control are incompetent, or the freeholder (and perhaps 'FFF' are setting 'GFF' up by giving the building control assessor a false account of what has been done.

            Much of the rest of the OP is contradictory and possibly cannot be answered without more information about the precise details of the lease - for example, 'GFRE' is presumably a new building, and therefore may well be 'GFF's' responsibility to repair. The fact that 'FFF' seems to use the roof as a 'balcony', and aparrently had a fire escape staircase attached to the extension further complicates things.

            We are told that the freeholder has said that 'GFF' is responsible for repairs to the affected roof, but are also told that the freeholder has started section 20 consultation for repair of the roof - which suggests that the freeholder may now have accepted that they are responsible for the repairs.

            As for the three questions at the end of the OP...

            1. Whoever removed the staircase should be responsible for repairs required as a result of the removal - unless they can argue that the repairs were necessary anyway and weren't caused by the removal.
            2. Quite possibly yes. If there were no lease variations after the extension was constructed by whoever was the leaseholder of 'GFF' at the time that 'GFRE' was built, 'GFF' may be solely responsible for all repair costs for the extension based on the wording in the clause quoted at (b). Whether the roof is demised to 'FFF' as a balcony might affect this though, and if 'FFF' can be shown to have caused the damage, 'GFF' may be able to claim costs back from them.
            3. Possibly nothing. The lease clause quoted seem ambiguous and somewhat contradictory, but since 'new buildings' are seemingly made the responsibility of the 'GFF' under the clause in (b), the freeholder's responsibility may only be to repair the roof of the original building (although the meaning of the clause quoted in (a) is not clear, and the clause seems unusual as it seems to require the freeholder to contribute to costs).


            Comment


              #7
              Originally posted by Macromia View Post
              It's not just you, I'm finding this difficult to understand as well.
              Thanks for confirming it's not just me having problems understanding it.

              As you say there does seem to be a number of contradictions in the original post, but I thought it might be best to go one step at a time trying to clarify them.

              So if building control has charged the ground floor flat with having unathorised works carried out, then ground floor flat simply shows building control that he didn't initiate the works and was not/is not responsible for the works.

              I'm not sure if a), b), & c) are meant to be the tribunals rulings on points 1, 2, & 3 of the application?
              It's unclear if the tribunal have even ruled yet?

              As Macromia said, the fact the the freeholder has now issued a s20, suggests that the tribunal may have ruled and the freeholder now accepts their repairing responsibility and is going the s20 route for the costs of repair.

              If that's the case then as I see it the ground floor flat now has two choices:
              He either accepts the s20 and pays his share of the cost, or goes to another tribunal to challenge the s20.

              (If he complies and pays his share of the cost then if he wants to he can later sue whoever caused the damage to try and recover his share of the cost).

              Comment


                #8
                Thank you for your input. Sorry the facts were unclear. There has been a history of disputes between me GFF and FH over their various breaches including failure to co operate with Insurer regarding a subsidence claim. they were the Insured. I had no right of enforceability. LL obtained insurance without sub cover, demanded additional monies not owed followed by threats of forfeiture etc. I made a successful S27A application a few years ago. FHH is therefore keen to hang me whenever possible hence the BC charge.
                The GFRE is not a new addition. The staircase was fixed to my GFRE wall and was broken and it also cracked the wall allowing water penetration and damp to GFRE for a few years.
                Staircase was removed by FFF but work was done badly leaving missing brickwork holes and gaps in GFRE wall where staricase was removed. there was a mediation agreement 18 months ago to settle a county court claim against FH. FH and FFF agreed to repair GFRE damage caused by removal of staircase. But when the area was opened up for repair they discovered damage was more extensive than they thought as the concrete roof slabs were cracked right through. They refused to carry out repair. FH reports confirm removable of staircase caused crack damage to concrete balcony roof slabs. FH's reports also show addtional layers of asphalt in part caused overloading of the roof. the roof was also not building regulation compliant. FFF lessee owned it from 1994. I suspect FFF laid the additional layers of asphalt. FFF causes a lot of nusiance issues ie not dealing with Japanese Knotweed on his and FH's land etc.
                Reports show that the the cracked balcony roof had been exposed for a lot time which allowed water ingress and damaged and weakened the metal steel beams causing worsening damp in GFRE.

                Before obtaining reports FH said if roof damaged by removal of staircase they will get FFF to pay for repairs but since reports obtained FH refusing to abide by what he said. FH wanted me to carry out repair citing my repairing covenant but roof is excluded. threatened me with forfeiture for alleged breach of repair of roof. FH's repairing covenant provides he carries out roof repair etc but he is challenging this and made a s27a which is coming up for hearing.
                This damage was an insured risk but FH as usual did not pursue claim timely. Insurer declined to pay for repair as claim made 2 years too late.
                FH and FFF is ganging up against me as FH is in breach of an absolute covenant consenting to works where there is an absolute prohibition in the lease. Both failed to ensure removal complied with Bldg reg.
                This is a maisonette lease which provides for GFF to deal with foundations and FFF the roofs.
                The lease is drafted in my favour and FH is seeking to change FH's repairing obligations to lessee ones. he is seeking to do this in the up coming lease extension hearing. The disrepair is also affecting the premium and so he wants to change his repairing covenant.

                My position is FFF directly caused the damage and in accordance with my lease terms he has make good any damage he caused by removal of staircase. FH failed to ensure removal was carried out correctly. FH failed tp pursue this repair which was an insured risk. FFF failed to claim repair costs from his contractor's indemnity insurance. GFF has suffered financial and other losses ie loss of amenity inconvenience nuisance etc

                FH has only asked FTT for determination on whose roof slabs, how should repair costs be arranged and who is Balcony roof demised to
                Sorry long post but I do hope it clarifies Thank you all very much .



                Comment


                  #9
                  If you can convince a court or tribunal that the repairs are only necessary as a result of a botched removal of the staircase by 'FFF', then whose responsibility is in to maintain the roof, and who it is demised to, should become irrelevant.

                  If 'FFF' caused the damage through their actions then they are responsible for putting right the damage.
                  You may have difficulty 'proving' this to the satisfaction of the courts though - unless you have a copy of a surveyors report that unequivocally gives that conclusion.

                  Comment


                    #10
                    Thank you. Yes I do have reports commissioned by LLs which they only disclosed last year because of a separate court action. Both reports one by Insurer and the other LL's own engineer are agreed damage was caused by removal of staircase and consequential damage caused by leaving it for a long time in disrepair. Insurer's report is factual and correct but Engineer obviously it was prepared for benefit of LL and commissioned by them (albeit I am asked to pay for it although no notice was given before money was spent) also cites wear and tear and other causes to a lesser degree.
                    I have emails from LL confirming they will get FFF to pay if damage was caused by removal of staircase but have not changed their mind.
                    One other question, what are the implications for LL granting a licence/consent to FFF for removal of staircase without ensuring that these works were carried out in accordance with Bldg regulation and other requirements. LL has put himself out by not being able to enforce any covenant against FFF by granting consent?

                    LL are trying to a get a declaration or a ruling from FTT to say lease defective as they want to change the Lessor repairing covenant 3(2) to lessee in the forthcoming lease extension hearing. FFF lease 3(2) is similar to GFF but does not provide for LL to pay a proportion for repairs. LL want to match 3(2) of FFF lease in lease extension. Can he do that? Grateful for any thoughts. Thank you

                    Comment


                      #11
                      I think I'm untangling it, and suggest that you need to do the same.

                      You need to separate the historic disputes from the dispute over the removal of the stairs.
                      (Hard to do I know).
                      And to separate any 'new' damage caused by the removal of the stairs from existing damage.

                      For instance:
                      .. when the area was opened up for repair they discovered damage was more extensive than they thought as the concrete roof slabs were cracked right through... reports show that the the cracked balcony roof had been exposed for a lot time which allowed water ingress and damaged and weakened the metal steel beams causing worsening damp in GFRE.
                      So it was already damaged well before the removal of the staircase. Steel beams don't rust through enough to weaken them in just a couple of years.

                      In which case you can't blame that historic damage on the staircase removal.

                      FH reports confirm removable of staircase caused crack damage to concrete balcony roof slabs.
                      I doubt that report says that removal caused all the historic crack damage, which seems to have been existing for some time, just some new damage in the area where the stairs were removed.
                      And it's been acknowledged that any new damage caused by that removal should be paid for by the first floor, but that doesn't mean he has to pay for historic damage as well.

                      .. reports also show addtional layers of asphalt in part caused overloading of the roof.
                      .. the roof was also not building regulation compliant.
                      We may be getting somewhere; is that non-compliance what has been reported to building control?
                      So the cracked roof slabs may be due to overloading, - overloading of a structure that was not sound/compliant to start with - But again that's nothing to do with removal of the staircase.

                      Japanese Knotweed has nothing to do with any this.
                      Are you sure it's Japenese Knotweed? Many people misidentify other plants as being Knotweed.

                      As said you need to separate the issues and deal with each one on it's own.
                      • The other parties have agreed that they are responsible to repair any damage that was caused by the removal of the staircase.
                        That's agreed, no problem there.
                      • The histoic damage to the (non-compliant) roof slabs is an entirely different matter and the freeholder is trying to resolve that with the s20 process.
                        You cannot resonably claim that removal of the staircase caused cracks in the whole roof, especially as they appear to have been there for years, long enough for steel beams to rust to a weakened state.
                      • PS. A property owner doesn't have to do anything about Japanese Knotweed other than ensuring that it doesn't spread to neighbouring land.

                      Comment


                        #12
                        Thank you for taking time to identifying the issues. Yesterday FH abandoned S20 because of my responses. he says will await outcome of hearing. In any event he only issued S20 due to compliance with directions. Oh he has been persistently late by 9 days with each direction. Is there a realistic possibility under Rule 9(3) a to request tribunal to disallow him from relying on his statement or to have part of his claim struck out? or are FTT more forgiving of such non compliance?

                        I have cut and pasted a summary of the report findings to give a fuller picture. LL did not want these reports disclosed. He only wanted determination of whose slabs and how to apportionment costs of repair.
                        1. Insurer “ The metal staircase had been removed some time ago and that would have been anchored into the extension roof structure. The removal has caused the crack damage to the rear of the roof structure.

                        The asphalt roof covering had been overlaid on at least two occasions increasing
                        on the weight structure below

                        The roof structure comprised two or three cross steel beams with a clay pot roof design

                        Insurer Description of damage- Externally the rear extension asphalt covered flat roof had been repaired although we have photographs from the engineers report displaying two cracks in the concrete slab up to 25mm in width.
                        The rear external metal staircase had ben removed some time ago and that would have been anchored into the slab. The brickwork at high level on the re rear wall of the extension was cracked and disturbed where the external staircase had been removed.
                        A diagonal crack was present at high level adjacent to the rainwater pipe at the junction of the extension and rear addition to the right hand flank.
                        summary of insurer - The cause of the cracking to the rear extension roof slab appears to be related to the removal of the staircase sometime ago and exacerbated by corrosion of the steel beams that support the roof structure due to rainwater ingress and additional loading and overlaying of asphalt on the existing covering.

                        LLL Engineer Report 2 , confirm cause of cracking as
                        Removal of the metal staircase and leaving the damaged structure exposed to the elements.

                        Disruption and cracking is in this area and it is most likely when the metal staircase was removed, the forces exerted on the brick work and concrete slab resulting in distortion in the brick work and giving rise to cracking in the slab. ”

                        In relation to the balcony structure, the report confirms, “The built of the roof, seems to suggest that the roof has been re surfaced, without stripping out the existing finishes.

                        This would increase the loading on the balcony slab construction and we cannot verify if the slab construction is structurally adequate for the increased loading.”

                        ENGINEER Findings
                        The Findings
                        The movement and cracking is mainly in the area of the metal staircase which had been removed. Brickwork locally damaged where the metal staircase was located at balcony level.

                        Cracking in balcony slab. Cracking along steel beams.

                        Where steel beams have been exposed, there is evidence of rust on the beams
                        The built of the asphalt roof seems to suggest that the roof has been resurfaced without stripping out the existing finishes. This would increase the loading on the balcony slab construction and we cannot verify if The slab construction is structurally adequate for the increased loading.
                        We cannot confirm if the existing balcony slab conforms with Bld Regs.
                        Conclusion
                        The cause of cracking in balcony roof slab seen to fall into a number of categories as follows
                        1. Removal of the metal staircase and leaving the damaged structure exposed to the elements. Disruption and cracking is in the area and it is most likely when the metal staircase was removed, the forces exerted on the brickwork and concrete slab resulting in distortion in the brickwork and giving rise to cracking in the slab.
                        2. Steel beams deflect under load,. The load on floors varies with its use and deflection sometimes referred to as Sagging, increases and conversely decreases when the load is reduced. Increase and decrease takes place almost all the time, reducing in movement of the floor beams. Deflection can be reduced if beams are larger but deflection cannot be eliminated altogether constituting yet another cause of movement and cracking.
                        3. Undermining beam RB1 support, by cutting brickwork at bearing location for air brick leaving the steel beam un unsupported. (neighbouring property too has similar air bricks in their rear extension. I did not do this but LL alleging I did) there is only one air brick.
                        4. Expansion and contraction due to changes in temperature and humidity, seasonal and otherwise.
                        5. A certain amount of wear and tear.
                        Items 1&2 are the main contributory factors and items 3, 4 and 5 minimal contribution to cracking

                        It is impossible to ascertain at what stage cracking in the slab had taken place and it is our opinion that the distortion caused in brickwork during removal of the metal staircase enhanced existing cracking and possibly resulted in new cracking. It is evident from the photographs that there is disruption where the staircase was removed
                        The crack is over the full length of the beam but it is wider near the staircase side, clearly indicating that removal of the staircase was a contributory factor. Does the reports assist me? I understand that I have to contribute for repairs but not for damage caused by FFF and sanctioned by LL
                        Thank you so much.

                        Comment


                          #13
                          Not sure about that 2nd engineers conclusions. (Unless he's mixed up his numbering 1 & 3 are the main factors).

                          No.1 - Fair enough.

                          No.2 - All beams deflect under load, even under their own weight. But a steel beam wouldn't deflect enough to cause serious (25mm wide) cracking of the concrete slab, unless the beam was woefully undersized or not sufficently supported.

                          No.3 - Leaving the end of the beam unsupported is a much more likely cause. It would be as if the beam wasn't there (except as dead weight cantilevered out from the other end, and it wouldn't have been fixed as a cantilever beam at that end) so the roof slab would sag at the unsupported end, and that's where the crack would be widest.

                          No.4 - Shouldn't realy be a factor. (All buildings that have supporting steels have the same expansion/contraction without causing cracking).

                          No.5 - Again not realy a factor in the cracking.

                          Corrosion as mentioned in the first report shouldn't be a factor either, it takes many years for a structural steel beam to be weakened by normal rusting.
                          Assuming of course that it is a structural steel beam.

                          The extra weight of the resurfacing may be a factor, but a properly sized and supported beam should have been able to take it.

                          In all I'd say that it's leaving one end of the steel unsupported that has caused the problem, maybe exacerbated by the extra weight of the ashphalt layers.
                          I hope that you have some support (acrow props or similar) under that beam now.

                          I do note that they say it's impossible to state just when the cracking started, but that the removal of the staircase hasn't helped.
                          ie. They are saying that it could have been cracked before and removing the support just made it a lot worse.

                          Comment

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