Help! - leasehold advice

AndyC67

Posted on behalf of my girlfriend

Any advice or help so much appreciated please. I own a leasehold property and the managing agents acting on behalf of the freeholder are attempting to claim I am solely responsible for structural repair works to the balcony of my flat and have now sent me today a final demand for payment.

The dispute has been going on for over 18 months but has now culminated in the final demand received today.

I rented the property back in April 2010 so have not been living there for some time but have advised the maintenance company of this and they send all correspondence to my current address.

To give some background..

I own a converted flat in a Victorian building converted into 8 flats. Mine is the only flat in the block that has a balcony, which can only be accessed through my flat.

There is a service charge I pay monthly which covers buildings insurance, water rates and maintance to communal areas ie decorating, electricity charges etc most of which I don’t use as I have my own private entrance unlike other flats which have a communal enterance. All flats pay the same service charges every month (there is no sinking fund held by the maintenance company) but for any major works carried out all leaseholders are to pay 12% of the total cost.

• June 2009 – following external maintenance works paid for by all leaseholders. Letter received from managing agent advising balcony joists, support bracket and soffits are rotten and need replacing. Letter advises they have consulted lease and because the balcony is demised to my flat on the flat plan outline that forms part of my lease they consider that the responsibility for repair to the balcony falls to me.

A year before I bought the property (2007) major works were carried out to the balcony(replacements of balustrades and balcony roof timbers) and I have copies of letters sent to all leaseholders from the same maintenance company stating that under the terms of their leases this is to be a shared cost and quotes were send to them for consideration before works completed.

This time the Managing agents got one quotation for repairs required and send this to me stating that I am responsible for balcony repairs as the balcony is demised to me. I write back immediately denying responsibility for the repairs as I consider structural repairs to the exterior of the building to be the freeholders responsibility (no doubt to then be passed on to the leaseholders equally) and send copies of the letters from the last works asking what had changed as there had been no deed of variation.

• June 2009 – March 2010. Protracted correspondence between me and managing agents. I consulted Leasehold Advisory Service (LEASE) during this period and provided copy of my lease to them. LEASE give advice that the lease is unclear and makes no specific mention of who is responsible for balcony. They advise on this basis it would appear to be the landlords responsibility because clause 5 of the lease covenants that the lessor must “keep the remainder of the Building (other than the premises) in good and tenantable repair and condition”.

My last correspondence with managing agents was an email in March 2010 when they agreed to review the correspondence from LEASE and come back to me. They did not respond.

• December 2010. Visit property during gap in between tenants to find repair works have commenced to balcony without any consent from or prior notification to me. The managing agents have instructed the builder who quotation was obtained from in July 09 to commence work.

• Today 5 Jan – Request for Payment and Final Demand for payment for balcony repair works arrive for £2585. Both are dated 4 Jan 2011.

Throughout this period I have continued to pay my monthly service charge as normal so that is completely up to date. However they have lumped the remaining balance of this years Service Charge on top of the balcony repair cost and sent me a final demand for the whole amount!

Help!! What do I do next?? I do not want to go down the road of receiving a County Court Judgement but do not feel I am responsible for the cost of the whole balcony repair as I’ve always believed it is a shared cost between all tenants and cannot afford to pay it all in one go in any case.

How do I go about resolving this dispute and put a stop on any legal action the managing agents may take in attempting to recover the full costs of the balcony repair in the meantime?


This has been dragging on for 18 months now and I’m at my wits end. Any advice/help on how to resolve the matter is much appreciated.

princeofpounds

Can you not force an LVT to decide the issue? Thought they could adjudicate on these things too.

I doubt they can have it both ways- either it is part of your premises and so not up to them to instruct a builder, or it is not and therefore a freehold expense.

If the balcony is demises to you I think responsibility depends on what is actually wrong...

Doozergirl

I was going to ask if you have legal cover with your home insurance but I guess you don't if it's organized by managing agents.

Next would be to recommend the LAS to you, but you've contacted them. Would this be covered by the LVT?

I can tell you that a CCJ is only applied when the court finds against you and you don't pay. You are perfectly entitled to fight your case in court and indeed lose without it affecting your credit rating. A CCJ reflects a genuinely unpaid debt, not one that has been contested and lost.

And really, you need a litigator. When we were in throws of having to sue a vendor for not providing vacant possession on completion, ours was very clear to me on what I should fight for and how much he was going to cost. But he was also very realistic and agreed that he would guide me, and where I could do things myself, I would - that I was capable and would pay for the advice rather than taking him to court with me etc. So it might be worth a try? I'd go back to the solicitor that helped you buy, see what their interpretation of the lease was.

Did they do all of the consultancy right etc before the major works were carried out? If they don't do it properly then the Leaseholders are only entitled to pay the first £250 of the bill. Long shot, but someone previously managed it on this board, so it's worth looking at!

And I really don't know but I wonder if there is any type of negligence on the part of the solicitor for not spotting a defective lease or is there perhaps an indemnity policy that they took out? In which case you need to speak to them to see if there is indemnity and what it covers, or another solicitor if you think there is a complaint against your solicitor.

bris

The shared costs would only apply to the common parts of the building, the balcony is a feature of your flat therefor the terms of you lease would hold you responsible for it's up keep.
You had the chance to put it right but you chose to ignore it, this gives the freeholder the right to repair it and bill you.
To clarify if this is right or wrong you really need to take your lease to a solicitor who would know about leaseholders rights.
It is common however for the leaseholder to be liable for the upkeep of their flats.

tbs624

As you have already used the Leasehold Advisory Service, have you considered a consultation with one of the specialist practitioners listed in their links http://www.lease-advice.org/information/advisors/

You say: "my last correspondence with managing agents was an email in March 2010 when they agreed to review the correspondence from LEASE and come back to me. They did not respond.

• December 2010. Visit property during gap in between tenants to find repair works have commenced to balcony without any consent from or prior notification to me. The managing agents have instructed the builder who quotation was obtained from in July 09 to commence work.

• Today 5 Jan – Request for Payment and Final Demand for payment for balcony repair works arrive for £2585. Both are dated 4 Jan 2011."

Why did you not follow up that correspondence with a " I have not yet had the courtesy of a reply to my letter of x (date) and enclose a copy of that letter and encs. in case you have mislaid it. I look forward to hearing from you" missile.

They would have been getting a variation of that every fortnight from me until I heard from them, if I was in your situation. Why did you not speak to the managing agents the day you found the workmen dealing with the repair?

You can get a fixed fee appointment with a specialist solicitor - I am not sure that I agree with your stance though, if you are the only beneficiary of this balcony.

In the meantime I would write thanking the Managing Agents for their invoice , enclose payment for the Service Charge, and state that, as they aware, you wish to dispute their interpretation of the lease and that you are still awaiting a reply from them to your previous letter.

john_white

bris wrote: »

The shared costs would only apply to the common parts of the building, the balcony is a feature of your flat therefor the terms of you lease would hold you responsible for it's up keep.
You had the chance to put it right but you chose to ignore it, this gives the freeholder the right to repair it and bill you.
To clarify if this is right or wrong you really need to take your lease to a solicitor who would know about leaseholders rights.
It is common however for the leaseholder to be liable for the upkeep of their flats.

It's not always that black and white.

2 examples, we had a roof light that broke, clearly the roof light was a window for our flat, but, it formed part of the roof, and therefore a common area.
Secondly we had external redecoration carried out. This included painting doors, this was for any external door not just outside doors to common areas, so some flats who had a front door leading outside got theirs painted, those whose front door was in a communal area did not. Your front door is very much part of 'your' flat, but for this case was not your responsibilty to paint.

I agree though the best thing to do is get a solicitor to look over the lease.

daveyjp

bris wrote: »

The shared costs would only apply to the common parts of the building, the balcony is a feature of your flat therefor the terms of you lease would hold you responsible for it's up keep.

Without reviewing the lease this cannot be said to be the case.

My mum in law's front door leading off a shared communal hallway is a "feature" of her flat, but she isn't responsible for it.

OP - The fact they haven't responded to your query from March 2010 won't look good in Court - it's time to resurrect that letter.

As doozergirl says there is also the issue of due notice and consultation regarding the expected costs, but you may need some specialist advice in this regard.

olly300

daveyjp wrote: »

OP - The fact they haven't responded to your query from March 2010 won't look good in Court - it's time to resurrect that letter.

Depends how the letter was sent.

If you can pull out a recorded sign for or special delivery slip for when you posted the letter, then the other party looks bad. (Regardless if whether RM says the letter was delivered or not.)

If you only sent the letter by normal post and didn't follow it up at least twice then the judge will believe it could have got mislaid.

AndyC67

Thanks everybody for your helpful replies. I admit an element of burying head in sand and hope the problem goes away has taken place. However, I have now been jolted into action and will ensure the problem is resolved one way or another.

I've spoken to the leasehold advisory service again and now that I've actually been billed for the whole cost of the balcony repairs, the course of action seems clearer. They have advised an application to the Leasehold Valuation Tribunal to decide on whether this variable service charge is fair i.e. to essentially decide responsibility for maintenance of the balcony. I also intend to bring up the Section 20 of the Landlord and Tenant Act that covers consultation for major repair works over the value of £250, as it's clear to me that this has not been followed by the managing agents. I have downloaded and nearly completed application form 27a and it will be finished this evening and posted tomorrow!

I appreciate to some that maintenance for repairs to a balcony in my sole use should be my responsibility. However, the issue of responsibility was brought up when I purchased the flat and evidence that it was the Freeholder's responsibility was produced in the form of letters and payment requests for repairs shared by all lessee's for the repair works undertaken in 2007. The general rule of thumb I always understood for leasehold properties is that unless the lease clearly stipulates otherwise, all external and structural maintenance/repairs is the responsibility of the freeholder and all internal (apart from communal areas) is the responsibility of the leaseholder. Maybe this is far too simple a view.

I've also sent a recorded delivery letter to the managing agents advising that I will continue to pay my normal service charge but refuse to pay the balcony repair charge pending my application to the leasehold valuation tribunal and that I also consider they have not followed the correct consultation procedure. I await their reply!

Many thanks again everybody. Your replies have helped considerably.