Between a rock and a hard place!

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    Between a rock and a hard place!

    Hello, I am a leaseholder of a residential property in a block of 6 units, with very dysfunctional relationship with our Freeholder. We have finance issues (* see summary below) coupled with significant building maintenance problems too. The Freeholder has stated (via his solicitor) that as we have not made any payments then he cannot afford to have the maintenance work carried out.

    We have spent a lot of time working towards the appointment of a new manager (via the LVT process) and more recently a RTM situation, but i now fear we do not have sufficient buy in from the required 50% of leaseholders and can see this dragging out for years to come.

    As far as the management and finances are concerned if it takes a while to sort out then so be it, but with the building maintenance issues (widespread damp, rising damp in a specific area and penetrating damp in others) i fear the longer this is left then the worse the situation will be to repair. Also i've noticed i'm suffering more respiratory problems that i feel are related and fear these will only worsen also.

    I really feel i cannot afford (financially or physically) for this to drag out any longer. So ...what I am wondering is can i go ahead and have whatever work is required (subject to survey results) done to fix the damp and then off-set the cost of this against the ground-rent / service charges that are over due * ? I presume i would have to notify other leaseholders and follow the Section 20 consultation process? How can i ensure, legally, that such suggested off-setting is agree/recognised by the Freeholder ?

    Thank you for any help here, as i said i feel like i'm between a rock and a hard place and really am running out of ideas on how to solve this.

    Thanks,
    Christine




    * Finance/Admin issues
    Freeholder did not issue any demand for ground rent or service charges for over 5 years, then issued an unaddressed 'statement of accounts' with none of the required accompanying info.
    He has failed to properly request Ground Rent in a prescribed form as stipulated in Section 166 of the Commonhold and Leasehold Reform Act 2002 and failed to provide summary of rights and obligations in relation to service charges as provided for in Section 153 of the Commonhold and Leasehold Reform Act 2002 and Sections 47 and 48 of the Landlord and Tenant Act 1987.

    We Leaseholders offered approx 18 months ago to pay what we are legally due to pay (i.e. Ground Rent for up to 6 years, and services for up to 18 months) when the request was reissued in the prescribed format. To date we have still not been properly 'billed' for the funds due so are still not willing to pay them.

    #2
    But Christine the LVT appointment need not require majority support as long as there is breach(s).

    You can also use the pre action protocol for disrepair and ask the local EHO to inspect and they may serve notice to repair.

    You cannot go ahead and do the work nor consult as the walls and the duties under the lease are not yours to assume. You may be left unable to get money back or set off, and liable for damages through trespass.

    The remedies that you have are the one that you should use, EHO LVT Manager disrepair protocol. I am not discounting the others but using them should as they said on TV " are done by trained professionals and should not be tried at home".

    In the meantime think about a mould survey it tests airborne mould.
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

    Comment


      #3
      Is the Amount due ( service charges )for work already done of for
      rectifying the damp ?

      if it'sfor rectifying the damp, then pay up, and you can go to theLVT
      later....
      He is right, if you all do not put money in the bank, just because one
      sheet of paper is missing, he cannot initiate any repairs.

      Pay up, get the work done, then politely tell him that if he does not
      supply the required information ( his solicitor can tell him what to do )
      you remind him he may have to pay back the service charges you have
      just paid him.

      But at least get the money in the service fund account FIRST.
      Then educate him, via his solicitor, so keep it a simple letter with info
      you have supplied here, then solicitor jst may educate the freeholder.

      O.K. so he has not supplied the "summary of rights and obligations",
      but all that says is you can dispute the service charges, etc etc etc
      But at least get some money in the bank FIRST so repairs can start.
      You CAN do the work required and bill the freeholder ( but get more a
      dvice on here first)

      But if you 6 still refuse to at least get money in the account, how is he
      going to pay you back.

      I see your plight, and understand, but without money, the freeholder
      can do nothing.
      My suggestion is an interim, once only suggestion to get the ball rolling.

      R.a.M

      Comment


        #4
        Originally posted by leaseholdanswers View Post
        But Christine the LVT appointment need not require majority support as long as there is breach(s).
        After serving Preliminary Notice Application for the Appointment of a Manager, the Freeholder (via his solicitor) informed us he would have no objections to us taking over the management of the building. After which the The Leasehold Advisory Service suggested proceeding to Tribunal would no longer be relevant as the Freeholder was not opposing the action and that instead we need to go down the RTM route and it is for this we need the 50%.

        Originally posted by leaseholdanswers View Post
        You can also use the pre action protocol for disrepair and ask the local EHO to inspect and they may serve notice to repair.
        Ahha, the EHO i never considered before as i presumed they would only be interested in their own tennanted properties and the notice to repair i have never heard of! These do sound like brilliant suggestions and i will start looking into both straight away.

        Originally posted by leaseholdanswers View Post
        You cannot go ahead and do the work nor consult as the walls and the duties under the lease are not yours to assume. You may be left unable to get money back or set off, and liable for damages through trespass.
        This makes sense, sounds like i'd be opening a huge can of worms, so won't consider this any further.

        Originally posted by leaseholdanswers View Post
        The remedies that you have are the one that you should use, EHO LVT Manager disrepair protocol. I am not discounting the others but using them should as they said on TV " are done by trained professionals and should not be tried at home".
        Will definitely stick to these suggested remedies and leave anything else to the experts

        Originally posted by leaseholdanswers View Post
        In the meantime think about a mould survey it tests airborne mould.
        Absolutely will consider one of these, especially as i imagine it will add more strength to the pre action protocol for disrepair process.

        Thank you very much for your help, you've given me some new avenues to explore and hopefully start getting this whole matter sorted.

        Comment


          #5
          Hi R.a.M,

          thank you for taking the time to reply

          Originally posted by ram View Post
          Is the Amount due ( service charges )for work already done of for
          rectifying the damp ?
          The amount due is apparently for buildings insurance, electricity charges and 'management fees'. With it being a relatively new building no works have yet been carried out and no provisions made for any future works.


          Originally posted by ram View Post
          if it'sfor rectifying the damp, then pay up, and you can go to theLVT
          later....
          He is right, if you all do not put money in the bank, just because one
          sheet of paper is missing, he cannot initiate any repairs.

          Pay up, get the work done, then politely tell him that if he does not
          supply the required information ( his solicitor can tell him what to do )
          you remind him he may have to pay back the service charges you have
          just paid him.

          But at least get the money in the service fund account FIRST.
          Then educate him, via his solicitor, so keep it a simple letter with info
          you have supplied here, then solicitor jst may educate the freeholder.

          O.K. so he has not supplied the "summary of rights and obligations",
          but all that says is you can dispute the service charges, etc etc etc
          But at least get some money in the bank FIRST so repairs can start.
          You CAN do the work required and bill the freeholder ( but get more a
          dvice on here first)

          But if you 6 still refuse to at least get money in the account, how is he
          going to pay you back.

          I see your plight, and understand, but without money, the freeholder
          can do nothing.
          My suggestion is an interim, once only suggestion to get the ball rolling.

          R.a.M
          Unfortunately i do not believe for a minute that even if we paid up the full amounts over due that the freeholder would take any interest in having the damp issues rectified.
          And given his disinterest throughout the time of our agreement with him i doubt he would have very much clout in convincing all the other leaseholders that money was due to pay for structural (damp) work that they might not see as directly affecting them.

          As for educating him via his solicitor our previous attempts at this haven't gotten us very far, it seems that pair are like the blind leading the blind.

          Unfortunately i too can see it from the Freeholders point of view, how can he pay for works when we have provided him with no money, but given his lack of managerial ability i really have little faith in the idea that giving him money will either get the work done or allow us to educate him further down the line.

          Comment


            #6
            Originally posted by xtine View Post
            After serving Preliminary Notice Application for the Appointment of a Manager, the Freeholder (via his solicitor) informed us he would have no objections to us taking over the management of the building. After which the The Leasehold Advisory Service suggested proceeding to Tribunal would no longer be relevant as the Freeholder was not opposing the action and that instead we need to go down the RTM route and it is for this we need the 50%..
            Then as it hasn’t turned out that way then resurrect the application to the tribunal. Serve notice on the landlord or the breaches and your intention to go that route. A final note to neighbours might get them to rally on RTM.

            Originally posted by xtine View Post
            Ahha, the EHO i never considered before as i presumed they would only be interested in their own tennanted properties and the notice to repair i have never heard of! These do sound like brilliant suggestions and i will start looking into both straight away.

            Thank you very much for your help, you've given me some new avenues to explore and hopefully start getting this whole matter sorted.
            The local authority has wide-ranging powers and deal with all premises not just their own

            You might find a local chartered surveyor (RICS) who deals with management and or building issues and residential management, who would be the nominated manager, but in the meantime can assist with the items needed to be put in the pre action protocol, and the breaches for the section 24 notice on the landlord prior to application for a manager.

            Most welcome and good luck
            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

            Comment


              #7
              Originally posted by xtine View Post
              With it being a relatively new building no works have yet been carried out and no provisions made for any future works.
              if it is relatively new why isn't this a liability action?
              Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

              Comment


                #8
                Originally posted by leaseholdanswers View Post
                if it is relatively new why isn't this a liability action?
                There was no NHBC guarantee on this development. Is there any come back on a builder (who in this case happens to also be the Freeholder) when no guarantee was offered, could he still be liable 6 years after the build completed ?

                Comment


                  #9
                  Originally posted by xtine View Post
                  The builder (who in this case happens to also be the Freeholder)
                  The above statement says it ALL.
                  and why you are having problems ( a re-occuring theme )

                  Leaseholdanswers is conversant in these matters, we leave you in his
                  capable hands/.

                  ( you should have mentioned this before, as puts a different slant
                  on the answers you will now get, and my post number 3 is now
                  redundant with your revelation. )

                  R.a.M.

                  Comment


                    #10
                    As it is a building defect, then you should sue the builder, for which
                    service charges should not apply for the builder ( and freeholder )
                    to rectify.

                    Comment


                      #11
                      Originally posted by ram View Post
                      As it is a building defect, then you should sue the builder, for which service charges should not apply for the builder ( and freeholder ) to rectify.
                      Thank you R.a.M. i genuinely thought as we had no 'official' guarantee there would be chance of the builder (and freeholder) accepting any liability for the defects. But you've definitely given us some food for thought here, will certainly look into this too.

                      Apologies for not mentioning earlier that the Freeholder & Builder are in fact the same person/company, i wasn't sure how relevant that might be and wanted to be concise in my summary of the situation, but can see now it puts a different slant on the scenario, so sorry for any earlier confusion.

                      Comment


                        #12
                        Originally posted by xtine View Post
                        it puts a different slant on the scenario
                        I would
                        1) ensure the building is insured. ( ask for details of the bock insurance
                        policy ) and if not insured, pay the money required to get it insured.
                        If building burns down,and no buildings insureance, you will be left with
                        no home, home not being rebuilt, and having to still pay the mortgage
                        for a home you no longer have, or will have.

                        2) involve the EHO regarding repairs, and go the route that the
                        builder is responsible for the inherent defects.
                        Having never done this, I cannot advise further.

                        You MUST involve all others, to point out the builder is hiding under
                        the "management" umbrella to make you pay for his defective building.

                        All owners must pull together to "do" the builder, get that side of it
                        done first, THEN go for the RMC ( resident management company )
                        if you all can afford to buy the freehold ( RMC ). ( lots of options - -
                        RTM, RMC, etc etc.

                        But until you know how it goes, making the "Builder" responsible for
                        the defects, and getting the jobs done that way, at no cost to you ,
                        wil be a hard slog, but if you save money, then it's worth it,
                        will you then be able to look at getting control yourselves.

                        You must also get agreement that the owners WILL put asside so
                        much, every month ( under the bed ) for the normal service charges
                        that will eventualy have to be paid, and things will mount up over the months / years.

                        So, let us all know if you get anywhere with "doing" the builder.

                        R.a.M.

                        Comment


                          #13
                          I think you and your Surveyor having assessed the problems and their causes will need to consider if these are matters which you will litigate on.

                          If they are defects or errors by the developer/freeholder, then other leaseholders may challenge the ultimate costs as not being recoverable through the service charge, leading to further delay.

                          They might then sell you the freehold at a discount on a warts and all basis, for you to resolve the issues yourselves.

                          Even without NHBC was there no other warranty such as a Zurich policy air \Architects Certificate- without any such documents it is very hard to lend on them.

                          Damp tends to be an exclusion but do check as the cause of the damp may be covered.
                          Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                          Comment

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