Share of freeholder not paying for repairs. Sue him?

JohnDoe1

Hi,
I have a flat which is share of freehold i.e. there's a company set up as the freeholder and the flat owners have an equal share of the company.

According to the lease all communal repairs costs are to be shared between the shareholders. There is now a leak in the roof but we have one nightmare owner who is refusing to pay.

As it's leaking I need it fixed, if I get the work done myself, how do I get him to pay his share?

Do I sue the company, which includes me, so seems rather silly or can I sue him directly? Can I sue him for legal costs as well as that could prove even more expensive than the repairs itself!

Thanks for any advice

timmyt

if the lease says the landlord must repair, and then they collect a service charge from each tenant you have your answer. the company repairs and if the tenant does not pay the company sues, and ultimately can forfeit his lease!

propertyman

Unless the roof is within your demise (in your lease) and or yours to repair, you have no basis on which to do so, or recover your costs from the freeholders.

In whatever form the freehold is held either jointly or through a company there may be internal remedies, however your best means are to act, as leaseholder, and require the freeholders to repair either by specific performance or enlisting the help of the local authority to serve an enforcement notice.

As long as the freeholders are required to repair the roof, the costs and solution is fair and reasonable, and consult under section 20 of the landlord and tenant act 1985, they should be able to recover as a money judgement or under threat of forfeiture.

the lvt process for dispensation for emergencies is just as long as consultation in many areas and in the first instance a roofer should be asked if temporary repairs or protection can be carried out in the meantime. That assists in proving it is an emergency, or buys a little time.

As a joint freehoder or shareholder/member you will of course have to justify why consultation should be dispensed with as the opportunity to address the roof leak at an earlier time, with full consultation, in clement weather was surely available.

bristol_pilot

You are going to end up paying yourself and not recovering the costs and your neighbour knows it. My friend was in this situation and the non-paying owner was a lawyer who knew that if she stood her ground and refused to pay she would get away with it...and she did. It is very difficult to sue a neighbour as they are in a position to make your life hell. Occupational hazard of buying a leasehold.

G_M

You do not say, but I am guessing this is a conversion with two flats and therefore two people owning 50% shares in the company which owns the freehold?

If so, then I understand your problem. The 'Company' cannot repair without the agreement of the shareholders, and one is refusing.

Recourse legally, then is for you, as a leaseholder, to sue the freehold company and obtain a ourt order for the freehold company to repair.

The company then has to sue the other leaseholder to get payment!

Unless I'm wrong and it's a block of 12 flats......

propertyman

G_M wrote: »

You do not say, but I am guessing this is a conversion with two flats and therefore two people owning 50% shares in the company which owns the freehold?

If so, then I understand your problem. The 'Company' cannot repair without the agreement of the shareholders, and one is refusing.

Recourse legally, then is for you, as a leaseholder, to sue the freehold company and obtain a ourt order for the freehold company to repair.

The company then has to sue the other leaseholder to get payment!

Unless I'm wrong and it's a block of 12 flats......

As per my earlier post this remedy would apply irrespective of the number of the flats.

The problem with jointly owned freeholds is that even those held by residents owned companies is that there are rarely clearly drafted mechanisms for dealing with a situation such as this, apathy, or wrong headed thinking.

it forces joint owners to sue each other or take formal action under the companies act, none of which are guaranteed and all expensive.
A simple agreement allowing binding arbitration is a good start in any such scheme.

Richard_Webster

If there are more than 2 flats then if the landlord is required to repair the roof under the lease then the company can pass a resolution by a majority to do this and then must get all the service charge notices etc right and got through all the right consultations about major works, but ultimately, having jumped through the right hoops then the company can sue the defaulting lessee.

If there are only two flats it is much more difficult because you can't get a majority of the members of the company to agree.

G_M

propertyman wrote: »

As per my earlier post this remedy would apply irrespective of the number of the flats.

The problem with jointly owned freeholds is that even those held by residents owned companies is that there are rarely clearly drafted mechanisms for dealing with a situation such as this, apathy, or wrong headed thinking.

it forces joint owners to sue each other or take formal action under the companies act, none of which are guaranteed and all expensive.
A simple agreement allowing binding arbitration is a good start in any such scheme.

No. As Richard explains above, with more than 2 flats a majority of shareholders means the magmt company can force the defaulting leaseholder to act, cutting out my step 1 - taking the magmt co. to court to force it to fulfill its obligations.

propertyman

Sadly Richard does not fully understand and you have it the wrong way round.

The member is in need of having the roof fixed and one lessee may not pay.

If there were only 2 flats, and lets say the member is the upper flat, sitting surrounded by buckets, and they with the lower flat jointly own the freehold. if the lower flat is unlikely to agree to repair as freeholder nor contribute as leaseholder, the upper flat can take action as a leaseholder against the freeholders, even if he is jointly freeholder. A court order for specific performance allows him to enforce judgement against him whether as a freeholder or as a leaseholder (subject to having it refered to the lvt for determination).

In larger schemes it is often harder to get a majority resolution; one recent example where a substantial number are seasoned citizens, they are extremely reluctant to incur anything other than short term, and shortsighted, emergency expenditure.

propertyman

G_M wrote: »

No. As Richard explains above, with more than 2 flats a majority of shareholders means the magmt company can force the defaulting leaseholder to act, cutting out my step 1 - taking the magmt co. to court to force it to fulfill its obligations.

But it is the management company that repairs, the defaulting leaseholder need simply be taken to court, assuming the lease requires the ManCo to repair and they complete statutory consultation.

Richard_Webster

If there were only 2 flats, and lets say the member is the upper flat, sitting surrounded by buckets, and they with the lower flat jointly own the freehold. if the lower flat is unlikely to agree to repair as freeholder nor contribute as leaseholder, the upper flat can take action as a leaseholder against the freeholders, even if he is jointly freeholder. A court order for specific performance allows him to enforce judgement against him whether as a freeholder or as a leaseholder (subject to having it refered to the lvt for determination).

In larger schemes it is often harder to get a majority resolution; one recent example where a substantial number are seasoned citizens, they are extremely reluctant to incur anything other than short term, and shortsighted, emergency expenditure.

This is all true, but whatever the legalities, the poor upstairs lessee still has the not inconsiderable cost of going to court!