Our lease conflicts with that of the other flat in our building

[londonc]

Hello, we're in the process of selling our flat (or at least trying to) and the buyer's solicitor has just uncovered that the terms of our lease conflict significantly with those of the flat upstairs from us (we live in a purpose-built two storey house with one flat on each floor. The flat upstairs is vacant and in serious disrepair, but works are planned on it later this year, supposedly).

There are some minor conflicts, but the major one is on responsibility for upkeep and repair - our lease states that we are responsible for repairing and maintaining everything up to the level of our ceilings (including external paint work and drainage), and the upstairs flat is responsible for everything above that height (including external decoration and, importantly, the roof which - as the buyer's surveyor said - is 'shot to pieces'). The lease of the upstairs flat states that they pay a service charge, and that the freeholder does all the external maintenance.

Our solicitor has stated that we will need to get one of the leases redrafted in order to sell our flat - probably ours, as the terms of the upstairs flat are more favourable to them (ultimate responsibility to pay towards only 50% of new roof costs) so they have no incentive to change theirs. She has said that we will also need to pay the freeholder's costs. We are also, if we redraft the terms of our lease, likely to take a hit in terms of a reduced offer from the buyer, as they will suddenly be responsible for roof costs.

I am posting this slightly overly detailed post as I want to check whether our solicitor is correct? There are covenants in our lease stating that the freeholder must ensure that the other leaseholder is responsible for maintaining the roof. I was also under the impression that it is the freeholder's responsibility to ensure that the leases are consistent. In which case, should he not be responsible for both his costs and ours? Also, do we have any recourse to go back to the solicitors we used when we bought the flat (three years ago) for not uncovering these problems at the time?

To complicate matters, the freeholder is currently not responding to attempts to contact him.

Any advice you can give would be greatly appreciated. Many thanks.

[Interlaken]

It is not unusual to find an older block of flats all with different leases stating different things. I suggest you use new solicitor. Why did she have copy of upstairs' lease anyway when you are not the owner of that flat?

[leaseholdanswers]

It is not unusual to find an older block of flats all with different leases stating different things. I suggest you use new solicitor. Why did she have copy of upstairs' lease anyway when you are not the owner of that flat?

Because they are publically available?!

[londonc]

It is not unusual to find an older block of flats all with different leases stating different things. I suggest you use new solicitor. Why did she have copy of upstairs' lease anyway when you are not the owner of that flat?

It's not the commonness that concerns me, it's that we have to get one of the leases rewritten in order to sell the flat (both solicitors - ours and our buyers - have said this). This, presumably, would be the case with a new solicitor too. The buyers' solicitor had a copy of the lease to check provisions for insurance, as our freeholder had not responded to communication.
Can I read from your response that:
(a) you believe that there shouldn't be any issue with selling our flat with a lease which conflicts to the other one in the building? (in which case, what happens when the roof gets repaired?)
(b) it is not a requirement for solicitors to check consistency with other leases when doing conveyancing on a property?

Many thanks.

[Interlaken]

In the case of b I have not experienced this myself. I own 1 in a block of 4 of older purpose built flats but we all own equal shares of the freehold. This different lease thing came up when one leaseholder objective to my laminate floors upstairs saying 'the lease says quality carpet' - well my lease didn't and I showed proof of. Since then a couple of flats have been sold and no mention was made of this different lease thing.

I can see you have a different set of problems with the absent freeholder. What happens to upstairs if roof is shot - they must be experiencing water ingress? Does freeholder do no repairs?

Also how long have you owned the flat - did this lease business not come up on your purchase?

[londonc]

The upstairs flat is vacant (and in a terrible state) and the freeholder does no repairs. We've owned it for three years, and no, it didn't come up when we bought - but our solicitor made lots of mistakes at the time (which we are pursuing separately), which makes me wonder whether we need to add this to the list.

Generally, the situation is a mess. If anyone has any advice, I'd be really grateful.

[quarterday]

Certainly this should be added to any list of failures and omissions of the solicitor who acted for you on the purchase - whose best defense would no doubt be that he asked the lessor if all leases in the building were drawn on the same basis and were told that they were. Whomsoever acted for you on the purchase will have been insured and so there is a good chance that there that practitioner's professional negligence policy will cover sorting this out. Varying your own lease with the freeholder would probably be the simplest route; and I believe that there are provisions to make an application to the Court for an order that such residential long leases be varied (I think now the court will transfer such an application handled by a LVT) and thus a court order can ultimately be made to straighten out the problem of two leases with conflicting service charge arrangements. But that's a last course, and a new solicitor will probably be on a two pronged attack firstly on your original solicitor and secondly in efforts to resolve amicably with the present freeholder rather than by order of Court. I know from my own experience that a fresh approach by a different firm of solicitors can break a stalemate.

[leaseholdanswers]

I think that there is poor understanding here.

1: Differences. Leases being in the same form relates largely to day to day clauses such as nuisance and use. it is not wrong or unusual for flats to be responsible for different things. The solicitor simply needs to understand who does what and does that "work".

2: Contradiction: You say the Upper flat is responsible for the roof but at the same time the freeholder is and the UF pays 50% of the cost via service charge. I think that the solicitor needs to look at both leases, as it is only a few pounds to purchase a copy and work out "who does what".
A 50 % share of the roof works seems fair bearing in mind that someone has to look after the foundations etc.Do you or is that shared?

A: If the freeholder is responsible, either to do the work and recover, or force the upper flat to do so, then your solicitor not you have to contact him. On your service charge and ground rent bills there should be a notice under section 47 & 48 of the Landlord and Tenant Act197 saying the \landlord is x and his address for service of notices in England and Wales is Y.

B: You can contact your local councils environmental health officer who can inspect and serve notice on the person responsible for the roof requirement them to repair it.

c: Under section 35 to 37 L & T Act 1987 you can make application to have your lease varied and try then to have the other varied too.

d: Whether the two leases allow enforcement by the landlord
see a:
e: common law remedies against the freeholder and other flat owner.

Whatever happens the sale will likely be lost due to the time involved. Claiming against the other solicitor might result in a pay out however that will not get the roof repaired and the flat sold.

You will have to look at the several options are open to you and how and when you follow them. I would start with understanding the leases as I am not sure that they are.