Who owns the windows in a flat above a commercial premises

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    Who owns the windows in a flat above a commercial premises

    I am the landlord of a 2 bedroom 2nd floor flat above a commercial premises ( car showroom ) . The showroom is run by the Freeholder and they own 8 flats of the 12 in the building . A few years ago without my knowledge they erected scaffolding and replaced the old single glazed metal windows in their flats .

    They have since written to the 4 leaseholders and advised if we want to replace our windows we must use a specific design and a specific company , furthermore we must seek permission for access and pay for the necessary scaffolding .

    The lease required the Freeholder to paint every 4 or 7 years i can't be sure , any iron works in the building and to clean any windows that make up part of the building . The windows are rotting owing to having only been painted twice in the last 20+ years . We had a survey to show diss-repair of the building 5 or 6 years ago for an LVT hearing and the windows were one of the items included in that report .

    My question is typically who owns the windows and who is responsible for replacing them ?

    I appreciate that they would not bear the whole cost and would be able to charge it to the service charge account .

    We have never been able to trust this Freeholder in the 30 years i have owned the flat . If it is my responsibility to replace them at my cost , why on earth wouldnt they alert me to the project and allow me to do the job at the same time they have scaffolding on the building and their forecourt was clear of cars ?

    They would have been able to charge me 1/12th of the cost of the scaffolding if all flats were completed at the same time , yet know they would require me to pay 100% of the costs of the scaffolding .

    I do not believe the scaffolding for the 8 flats they replaced the windows appears in the service charge account , one other leaseholder paid for replacing their windows and 100% of scaffolding to complete .

    It would save me alot of aggravation if the freeholder has to replace the windows as my flat occupies a corner plot and covers 3/4 of their forecourt . They will be very difficult about getting access !

    Many Thanks

    #2
    Who is responsible for maintaining the windows (not the same question as who owns them) depends on what the lease says. Please set out in full the respective repairing obligations in the lease and any relevant definitions.

    Comment


      #3
      (d) That (subject to contribution and payment as hereinbefore provided) the Lessors will maintain repair decorate and renew:- (i) The main structure and in particular the foundations roof gutters and rain water pipes of the Development

      Comment


        #4
        (d) That (subject to contribution and payment as hereinbefore provided) the Lessors will maintain repair decorate and renew:-

        (i) The main structure and in particular the foundations roof gutters and rain water pipes of the Development

        (ii) The water pipes and fittings the communal, television aerial (if any) the electric cables and wires drains and sewers in under and upon the Development and enjoyed or used by the Lessee in common with the owners and lessees of the other flats

        (iii) The main entrances passages landings and staircases of Development so enjoyed used by the Lessee in common as aforesaid and

        (iv) The boundary walls and fences of the Development


        (e) That (subject as aforesaid) the Lessors will so far as practicable keep clean and use their best endeavours to keep reasonably lighted the passages landings I staircases and other parts of the Development so enjoyed or used by the Lessee in common as aforesaid and as far as practicable keep clean the exterior glass of all windows of the Building and the interior glass of such of the windows of the Building as are so enjoyed or used in common as aforesaid and as far as practicable keep the pathways dustbin enclosure driveway and the gardens and other parts of the Development not demised to a lessee in Good order and condition and (as to the gardens) cultivation

        (f) That (subject as aforesaid) the Lessors will so often as reasonably required decorate the exterior of the Building in the manner in which the same was previously decorated or as near thereto as circumstances permit and in particular will paint the exterior parts of the Building usually painted withh two coats at least of good paint at least once every four years

        Comment


          #5
          (d) That (subject to contribution and payment as hereinbefore provided) the Lessors will maintain repair decorate and renew:- (i) The main structure and in particular the foundations roof gutters and rain water pipes of the Development

          Comment


            #6
            HEREBY DEMISE unto the Lessee ALL THAT the flat (hereinafter called the flat )
            aforesaid being on the second floor of the
            Building (including the floor and ceilings of the Flat but not the floor of the flat above it (if any) and (subject to Clause 7 (i) hereof) the internal and external walls between such levels) the situation whereof is shown on the plan

            Comment


              #7
              You'll also need also need to say what the lease says about the lessee's maintenance responsibilities.
              What you have quoted doesn't include any clear mention of windows, so determining who is responsible for their maintenance needs to take into account the lessee's responsibilities as well as those of the lessor.
              If the lessee is made responsible for 'maintaining the demised property' (or something along similar lines), you will also need to see what the lease specifies is included, or excluded, from the demise - although post #6 does suggest that the windows are likely to be demised to you.


              An additional consideration may be that, if you can successfully argue that the windows wouldn't need replacing if they had been maintained properly according to the lessor's responsibilities, they are responsible for at least part of the costs and/or that they should have given leaseholders the opportunity to replace their windows, and share scaffolding costs, when the windows in the lessor's flats were replaced.
              This is likely to be a difficult line of argument to win though.

              Comment


                #8
                1. Keep the Flat (other than the parts thereof comprised and referred to in paragraphs (d) and (f) of Clause 5 hereof) and all walls party walls sewers drains pipes cables wires and appurtenances thereto belonging in good and tenantable repair and condition and in particular (but without prejudice to the generality of the foregoing) so as to support shelter and protect the parts of the building other than the Flat


                (vi) In every seventh year computed from the date hereof and also during the last year thereof to paint with two coats at least of good quality paint in a proper and workmanlike manner all the wood iron and other parts of the inside of the demised premises usually or which ought to be painted and at such times as aforesaid grain varnish distemper wash stop whiten colour and paper all such parts of the interior of the demised premises as are usually so treated

                Comment


                  #9
                  Thank you i agree fighting a legal battle over upkeep or scaffolding cost is hard work .

                  I do think however that the windows in this instance could be classed as the MAIN STRUCTURE and could be the Freeholders responsibility to renew .The word windows is absent from the Lease other than stating the Freeholder has to clean them and this clause

                  6. No name writing drawing signboard plate or placard of any kind shall be put on by or in any window on the exterior of the Flat or so as to be visible from outside the Flat (other than a nameplate of a size and description and in a position previously approved in writing by the Lessors).

                  It is clear the floor and ceiling is mine under the Demise but i cant figure what else is .

                  I am also drawn to this LVT ruling

                  Sheffield City Council v Oliver [2008] EWLands LRX/146/2007.
                  The Lands Tribunal has found that the external windows of a flat formed part of the structure and exterior of the flat. As a result, the landlord was obliged to repair the windows, even though they were demised to the tenant. The Lands Tribunal held that the extent of the demise did not limit the scope of the landlord's repairing covenant.

                  Comment


                    #10
                    1. Keep the Flat (other than the parts thereof comprised and referred to in paragraphs (d) and (f) of Clause 5 hereof) and all walls party walls sewers drains pipes cables wires and appurtenances thereto belonging in good and tenantable repair and condition and in particular (but without prejudice to the generality of the foregoing) so as to support shelter and protect the parts of the building other than the Flat


                    (vi) In every seventh year computed from the date hereof and also during the last year thereof to paint with two coats at least of good quality paint in a proper and workmanlike manner all the wood iron and other parts of the inside of the demised premises usually or which ought to be painted and at such times as aforesaid grain varnish distemper wash stop whiten colour and paper all such parts of the interior of the demised premises as are usually so treated

                    Comment


                      #11
                      Originally posted by andyg1 View Post
                      I do think however that the windows in this instance could be classed as the MAIN STRUCTURE and could be the Freeholders responsibility to renew .The word windows is absent from the Lease other than stating the Freeholder has to clean them and this clause.
                      Yes, without the windows being specifically mentioned as being the lessee's responsibility to repair, you may have a very good chance of successfully arguing that they are the lessors responsibility as part of the 'main structure'. There is likely to be other case law that also supports this.

                      On the other hand, the freeholder would likely try to argue that the windows aren't specifically mention in clauses 5 (d0 or (f), and are 'appurtenances' that the leaseholder has responsibility for under clause 1.

                      Comment


                        #12
                        Most windows can be replaced from the inside without the need for scaffolding which will make it much cheaper.

                        Comment


                          #13
                          Originally posted by royw View Post
                          Most windows can be replaced from the inside without the need for scaffolding which will make it much cheaper.
                          Very true.
                          This doesn't answer the question of who is responsible, but it could potentially be cheaper (and less hassle) for the OP if they can find a company willing to replace the windows without scaffolding.
                          There is, of course, the possibility that the freeholder would refuse to allow this, claiming safety issues affecting the showroom below (especially if the windows will be over the showroom entrance).

                          Comment


                            #14
                            They can't impose you put the same windows, unless it is in the lease. If that was a requirement, they should have offered the remaining residents to do it at the same time they were doing theirs. At the moment they are a mismatch.

                            When they had the scaffold there, they should have repainted the windows at the same time.....

                            I have windows changed and scaffolding was n't necessary, but I suspect it helps....




                            Comment


                              #15
                              Thanks all there is a forecourt beneath and they will require method statements etc etc . I had BGAS replace a boiler using a cherry picker , at my cost , to change the flue and that was another song and dance about access and health and safety method statements insurance documents , hence the reason i would rather they replace them and charge me via the service charge account .
                              The style of windows they want me to use the same and claim it is part of planning consent .

                              Comment

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