Issues with Share of Freehold and a negligent freeholder

msfb

Hi,

My partner and I bought a flat approximately 1 year ago (our first property). It's a Victorian house which has been split up into 3 flats and it is share of freehold. We are slowly renovating it.

We own and live in the basement flat, however the freeholders who own the ground floor and top flat rent these flats out.

We have had severe issues with water coming through walls and ceilings.

Firstly in September this year I noticed water coming down the wall of the porch, I advised the top flat freeholder and explained my concerns about the building and my worries about structure. He advised he would fix it.

The same problem is still happening and it's now December.

Secondly we've had a very worrying amount of water coming through our bathroom ceiling. After two weeks we got to the cause and found it was coming from a badly plumbed in washing machine in the top flat.

The freeholder of the top flat claims to have resolved both these issues, but I don't trust that he has. I am also very worried and the buildings structure and concerned it could potentially be unsafe.

The ground floor flat (in the middle) can't see any obvious damage to walls or ceilings however I'm sure that amount of water would have caused issues that we cannot see.

The ceiling of our bathroom and kitchen are saturated with water, and our kitchen ceiling was recently completely replastered and brand new light fittings added as well as being freshly painted.

We do have joint buildings insurance. Or should I be sending an invoice to the top flat freeholder for costs of the damage caused?

What can I do?
Any advice much appreciated.
Thank you.

eddddy

Can you clarify, are you in England/Wales... or Scotland?

(If you're in England/Wales, do you mean you have bought a leasehold flat, plus you jointly own the freehold of the building?)

msfb

Hi,

I'm in England, more specifically in London.
Yes it's Leasehold and we jointly own the freehold.

eddddy

Well in legal terms, you can only claim damages from the top floor leaseholder (joint freeholder) if they were negligent. (See: http://legal-dictionary.thefreedictionary.com/negligence)

So if somebody installed the washing machine without reasonable care - they might be negligent.

But if the leak was not foreseeable by a reasonable person, there is no negligence.

But if you informed the other leaseholder of a leak in September, and it is still unfixed in December - that is probably negligent. So you can claim from them for the extra damage done between September and December.

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If the buildings insurance policy covers damage caused by escape of water, you could claim on that. But look out for a high excess, and future increased premiums.

Also, if there are 3 joint policyholders, you probably need the other 2 to agree to you claiming.

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Edit to add...

But there is nothing to stop you asking the other leaseholder to pay for the damage, whether or not they were negligent. I know some people who have paid because they feel bad - even though they weren't negligent.

G_M

There are two issues.

1) damage caused by the plumbing upstairs.
a) You can try claiming this off he leaseholder responsible upstairs, but legally speaking they are only liable if they were negligent. eg if they knew about the leak but did nothing thus causing more damage.

But they may respond to a claim positively......

Perhaps a friendly approach/chat (invite them to tea with....??)

b) or you could claim off the insurance.

2) structural issues.

Since you are the one most affected I suspect you will have to be pro-active. After all - you are a joint freeholder, so why expect the others to take action? The possible issue is that you are in a minority and the others may not want to do costly repairs

i'm no expert, and http://lease-advice.org/ might be a good place to look for help, but I'd suggest you

a) write formally to all 3 freeholders (including yourself) in your capacity of leaseholder, reporting the issues and requesting a remedy

b) write to the other freeholders in your capacity as joint freeholder, saying that you propose to instruct a surveyor to investigate the issue, the cost to come from the freeholder account and be passed to the various leaseholders annual service charges.

you'd better read the leases to see what is said about responsibility.

c) get a surveyor to write a report

d) send report to the other joint freeholders and say you will now get 3 builders quotes for whatever work it recommends

Again, I repeat - read the 3 leases, and check whether responsibility for cost of repairs should be equally split between leaseholds, or whether the basement is responsible for the lower part and the upper flat responsible for the roof etc

What is the structure of the freehold? Is it owned by a company in which you all 3 have shares? What are the company's rules? Who manages the finance? How are decisions made?

Or is it an informal arrangement with no constitution? How is the insurance etc purchased?

Irratus_Rusticus

As per last reply, there is potentially more remedy than a negligence claim if you are a shared freeholder. You refer to others as 'freeholders' but I assume they have an equal share just like you. How do you collectively operate the freeholder role?

In a simple world there would be a physically different freeholder and leaseholder(s) and the freeholder in your situation could be persuaded (see the lease for any indemnity needed from the complainant lessee) to pursue a s168 breach application for failing to maintain or repair as suffering three months' water ingress from above is not easily explained otherwise, unless maybe storm damage from outside.

A freeholder application for breach incurs costs: inspection of the suspected demise(s) by a surveyor to draw up a conditions and dilapidations report, instructing solicitors to serve notice on the alleged breaching lessee(s), and legal cost for the application itself. All these costs could add up to a hefty admin charge and help focus the minds of any lessee minded to ignore what their sub-letting tenants are doing. But the costs would need to be reasonable and determined at court. Maybe there is a clause in the lease that puts all such costs on the service charge (which hits all the lessees)?

I recently read an FTT case where the secretary (shared freehold lessee) of a freehold company took one of its directors (also shared freehold lessee) to Tribunal for breach. Not sure how that setup organised decision-making as freeholder. Which is why the above questions about the freehold ownership are relevant to you. When you share the freehold there is no landlord to complain to!

msfb

Thank you all for your advise.

I think part of the problem is that there is not one overall person organising or making decisions on behalf of all of us.

The freehold is split between the owner of the top flat, the owner of the ground floor flat and us the owners of the basement flat. However we are the only owner occupiers and as a result we feel like the ones pushing for action, (as it doesn't really affect the ground floor/top flat freeholders, as they are still getting their rent from tenants).

The freeholder of the top flat (who previously ignored my prompts to get the leak at the front of the property fixed in September) often tries to fix things himself or takes very little responsibility and tries deny the issue originates from his flat.

It's a very frustrating position to be in. This is our first property and it has been a baptism of fire.

Should I be contacting a structural engineer myself? In order to review damage caused.

We also have damp in our property and previously believed this was because we are in a basement flat, however knowing what I know now I feel like this could be caused by the top flat freeholders resistance to resolve issues properly and professionally.

We have joint buildings insurance, which is organised by the freeholder who owns the ground floor flat. We pay her at the beginning of the year and she arranges the insurance, it is under all of our names.

G_M

msfb wrote: »

Should I be contacting a structural engineer myself? In order to review damage caused.

....

We have joint buildings insurance, which is organised by the freeholder who owns the ground floor flat. We pay her at the beginning of the year and she arranges the insurance, it is under all of our names.

As preiously adised, if this is oing to be fixed it will require a surveyor/SE report to identiy what needs doing.

Also as advised, you will clearly have to be pro-active a) because you are the one suffering and b) for the reasons you describe (non-resident freeholders)

The question is who pays for the report? You could simply pay yourself, and hope the report itself is enough to push things forward. But (depending on the leases - have you read them yet?) I imagine "the freeholder" (ie the 3 of you) should pay (and reclaim the cost from the leaseholders - yourselves - either from a one-off charge or via an annual service charge if any.

Hence my advice that you take it step by step, writing to the responsible parties at each step so they are informed of the costs you intend to incur.

They might, of course, write back refusing to agree, and if they both do so, it's a 2 to 1 vote against you. That's the problem with a joint freehold set-up........

But then again, as a leaseholder you still have the option to force the freeholder to act. Hence my advice that step 1 is to write as leaseholder, to all joint freeholders, reporting the issue.

If the insurance is in joint names, you may be able to make a claim unilaterally. Ask the insurer.