Damp problems requiring ‘improvements’ to a property. Who pays?

[Lawcruncher]

The lease says that floor joists and internal plasterwork are the responsibility of the leaseholder.

But what are the landlord's responsibilities? If the foundations are the landlord's responsibility and he has failed to comply with the obilagation any consequential damage may be down to him. What we need to know is what the landlord's repairing obligations are.

[Keith]

Lawcruncher,

Well, the lease says "THE ... Management Company hereby covenants with the Lessee during the said term
(1) from time to time and at all times during the said term well and substantially to repair reinstate uphold support cleanse illuminate maintain amend drain and keep in good and substantial repair condition and appearance with all necessary reparations cleansings and amendments whatsoever such parts of the Building and all additions which may be made thereof during the said term and the fixtures thereof or in any such addition (including the roofs roof spaces joists ...) as are not comprised in leases of flats situate therein ...

i.e. the landlord does not appear to have responsibilities for repairing or reinstating joists or plasterwork so I assume that billing the leaseholder for the cost of these would be in order, even if the damage was consequent upon penetrative damp caused by the lack of damp proofing (which, in itself, might be considered an 'inherent' fault in the property arising from faulty original construction in any case, as mentioned in previous comments).

I am not wilfully trying to dump the cost of this repair on the leaseholder concerned, by the way, but merely to try and establish who has the legal responsibility to pay as I will need cast iron arguments to justify any charge to the other leaseholders.

[Keith]

I had some rotten joists once. It turned out to be caused by the fact they had been cut too long or installed incorrectly and bridged the cavity.

Even if ground levels have been raised above dpc level, the cavity should still protect the ends of the joists as long as there is sufficient ventilation. There are serious arguments against chemical dpcs and internal rendering.

That would be an important point: if the fault lies with the joists themselves, the freehold would surely have no obligation to replace them. When the house was built, the builders presumably thought that the joists (now over 125 years old) would be safe from damp otherwise they would have provided protection of some kind.

[andybenw]

The fact there have been 2 previous ineffective injected chemical dpc's kind of backs up my argument against them. No doubt expensive internal rendering/plastering was completed at the same time as these dpc's as that is how the companies operate.

I would clear out the cavities and install vents as recommended by the survey, and tell the leaseholder to replace their own joists and floorboards demised to them in their lease.

The small subfloor space can't be that bad, after all the joists have lasted for over a hundred years. Although considering the small cavity below the joist ends, perhaps a check on the cavity every couple of years would be appropriate to check it is not blocking up?

[Lawcruncher]

Keith,

To the extent that the work required amounts to the repair reinstatement upholding supporting cleansing illuminating maintaining amending draining and keeping in good and substantial repair condition and appearance with all necessary reparations cleansings and amendments whatsoever such parts of the Building as are not comprised in leases of flats, then the work is down to the landlord. If the landlord has failed to comply with its repairing obligations and the condition of the joists and plaster work is attributable to the breach the landlord is also responsible for the repair/replacement of the joists and plasterwork.

There is no rule as such that a landlord has no obligation to repair an inherent defect. The question to ask is whether the property has deteriorated since it was built - note: "since it was built", not "since the lease was granted". Of course the wording of the lease may in any event make the landlord responsible for remedying an inherent defect. The starting point is that "repair" includes "put into repair".

Further, there is no hard and fast distinction between "repair" and "improvement". The question to ask is whether any work will result in the property being a significantly different thing from what it was at the start of the lease. If repair does not address the real problem then work is needed which does address the problem. In this case, if all that will happen if the joists and plasterwork are replaced is that the damp will penetrate again there is a strong argument that remedial work is required.

Looking at individual cases and hoping to find the answer is probably not going to help because each case is different depending on circumstances including the wording of the lease and the precise nature of the problem. The landlord's covenant here is pretty wide and includes the word "amendments". I suspect the word was included to justify going beyond "mere repair" where that is the best long term solution. It is a two edged sword as if a landlord wants the freedom to go beyond mere repair he is obliged to do so where it is justified.

What is needed is an investigation by a building surveyor with a more than passing knowledge of the relevant law to determine not only the cause of the problem and how it can be remedied, but who is responsible for what.

[andybenw]

I have no doubt Lawcruncher is correct in his law points. However, this may come down to a case of 'who blinks first' as I'm sure nobody wants things dragged out in court.

As the leaseholder is losing rental income then if the landlord clears the cavities and installs the ventilation the leaseholder may well 'blink' and repair the joists floorboards themselves. If not perhaps offer to split the cost as it is not clear who is at fault, but give the leaseholder a chance to give in first. Ie don't offer that straight away.

I have a feeling that ventilation will sort the problem for the future. It seems this has already been recommended.

[Keith]

andybenw,

If I read correctly, you are referring to wall cavities here. Our walls are stone down as far as a foot or two above the ground level when brick takes over and there is no cavity. So the ends of the joists are always going to be in contact with the external skin of the building, unfortunately (another 'intrinsic' problem, maybe?).

[andybenw]

Ah I got mixed up. After a reread I now see the cavity mentioned is the space below the suspended floor.

The problem is now clear. Raised ground levels above the joist levels was always going to rot the ends of the timbers then if there is no wall cavity. It's straight forward penetrating damp that is the problem. The joists would have been fine until the ground was built up next to the wall as the ends were probably resting on slate or similar to prevent damp.

The ends of the new joists will need to be encased completely in waterproof material to prevent them rotting again.

The best solution (which may be impossible) would be to lower outside ground levels adjacent to the wall. This is often done via a 'french drain' trench which keeps ground levels looking the same but effectively lowers the ground level at the problem area.

And sub floor ventilation should be incorporated.

The question is "Who raised the ground levels adjacent to the joists?".

[Lawcruncher]

I have no doubt Lawcruncher is correct in his law points. However, this may come down to a case of 'who blinks first' as I'm sure nobody wants things dragged out in court.

The parties need to avoid going to any tribunal if they possibly can. However, the OP wants to be informed of the legal position so he knows where he stands. As I explained, it is not entirely clear-cut. On the basis of the information supplied I would say the advantage lies with the leaseholder, but expert input is needed before anyone can give a properly informed opinion.

There is a tendency to think that if a problem only affects one flat it is unfair that the unaffected leaseholders should have to pay. A tenant in a basement flat objects to paying for roof repairs and a tenant in a top flat objects to paying for the elimination of rising damp. It is all down to what the leases say because there is no unified system or any rule of law allocating responsibility.

I meant to mention in my last post that the fact that the leaseholder did not have a survey is of no relevance in this case.

[Keith]

The ends of the new joists will need to be encased completely in waterproof material to prevent them rotting again.

...

The question is "Who raised the ground levels adjacent to the joists?".

The current ground level of the external wall affected by the damp is the level of solid floor of the glasshouse built against the house as a lean-to at the time (or very soon after) the house was built (as shown on OS maps of the period). The glasshouse disappears from the OS maps in the 1930s but part of its central tiled walkway which extended its length (and which indicates that the current ground level is original) now forms part of the pathway along that side of the house.

However, the leaseholder, around 10 years ago, compounded the problem by installing decking (without permission from the freehold) which increased the height of the ground by a further 6 inches. In a few places, this decking abutted the sides of the house (which is what I described earlier as 'contributory negligence'): in others, it was a few inches away. This has now been removed on the recommendation of an independent damp report. The leaseholder also prevented the freehold from tackling the damp problems for a period of around 12 months (when the property was occupied by an elderly lady in poor health and empty following her decease and the settling of her affairs), during which time, presumably, the joists would have had time to rot further.

Is it a coincidence that there was no damp in the flat after 1983 until 2011, 4 years after the decking was installed? I don't know.

[Lawcruncher]

Keith,

This is getting increasingly complicated! I am not sure you are going to find a definitive answer in a forum. Unless a deal is done everyone is happy with, professional advice is needed.

[Keith]

Lawcruncher,

I think you are right. In a way, I am reassured to hear that this is a difficult case which is beyond the scope of a lay person such as myself to be expected to resolve. There are even other factors which I didn't mention in the hope of avoiding over-complication. Many thanks to everyone who took the trouble to reply. The advice has been useful.