Freeholder/Agent Demanding Money For Repairs

ASLS91

Hi all,

Long time lurker of this forum and recent new member. Have always found the forum incredibly helpful so thank you! Have now got an issue with our freeholder that I could use some specific advice on (have tried searching for similar posts but to no avail).

We have recently bought a leasehold flat in a period conversion. We are on the upper floor and the lower floor is owned by a housing association and rented out. The housing association are also our freeholder and act as managing agent for both flats. We have recently been sent a request for multiple thousand pounds to fix an external boundary wall in the back garden, despite having no access to garden. This seems unfair and we will struggle to pay this if it turns out we are obliged to. 

Keen to avoid paying, I have been poring through the lease and believe the following are the pertinent parts: 

In the prescribed clauses at the beginning, it says that the Property is defined in Schedule 1 ("The Premises"). This clause also says "in the case of a conflict between this clause and the remainder of this lease then, for the purposes of registration, this clause shall prevail". Schedule 1 defines the property as "all that property known as [Address] being the First Floor Flat as shown edged red on the attached plan" (note this does not include the garden or garden wall). It also states the premises includes various things (including the plaster of walls but not the actual walls themselves…). None of these things are the garden or garden/boundary walls. Schedule 1 goes on to say that the premises do not include: 1) "load bearing framework and all other structural parts of the building not included in the premises" 2) "The roof, foundations, joists and external walls of the building" 3) "The rear garden". 

After some back and forth where we have so far flat out refused to pay due to not having any access to the garden, the agent/leaseholder is now referring to a clause Under Landlords Covenants which states: "Subject to payment of the Ground Rent and Service Charges, the Landlord shall maintain, repair, redecorate, renew and (in the event in the landlord's reasonable opinion such works are required) improve...the boundary walls, gates and fences of the Building (if any)". They are suggesting that the Building includes the garden and its boundary walls. However, the Building is defined in the definitions at the start of the lease as:
"Building means the building of which the Premises form part and each and every part of the Building and any other areas the use and enjoyment of which is appurtenant to the Building whether or not within the structure of the building".

We disagree with this as 1) Schedule 1 makes no mention of the garden or boundary walls being included in the Premises 2) We have no "use and enjoyment" of the garden 3) The prescribed clauses state that Schedule 1 is gospel. 

Apologies for the long post and thanks for sticking with it so far! Would like some opinions on whether the freeholder has any grounds to obligate us to pay towards the repair of the wall. Interestingly, they have not yet mentioned escalating it (legal fees etc). They also have not provided us with any quotes as part of the Section 20 process (surely this isn't on either??)

Any help much appreciated

tacpot12

I think you are going to have an uphill battle here.

Their assertion that the building includes the garden seems to be correct, because it says ".. any other areas the use and enjoyment of which is appurtenant to the Building whether or not within the structure of the building".  The garden and walls are not within the building, but they are part of the definition of what is "the building". 
 
I think you are confusing "the building" with "the premises". The premises are what you own and are responsible for, the building is what the freeholder owns and is responsible for, but the lease will make you liable to pay a proportion of the costs of repairs to the building. Schedule 1 describes what you have leased so it doesn't include the garden (or wall). The building clearly does include these things. 

The freeholder should have issued you or the party you bougth the lease off with a notice saying the works needed doing and the quotes. Ask the freeholder to send you copies of these. If you get them, then you have a case for suing the party you bought the lease from as they should have disclosed the outstanding amounts for Section 20 repairs. If they haven't followed the Section 20 process, my understanding is that you are not compelled to pay anything, but I would suggest you take independent legal advice on this, once you know that they haven't followed the process.    

NameUnavailable

What does the lease say about your obligations for maintenance? There will be a specific clause. The clause you quote above is to confirm your demised part/s of the building and or common areas.

It is most likely that you are liable to pay for the repairs to the walls. A comparison example would be a ground floor flat in a higher rise block with lifts - you still pay to maintain the lifts even though you'd never need them.

If you refuse to pay the charges your freeholder could take action to forfeit your lease, and that means losing everything, literally!

Leesabee1

The Premises and the Building are 2 separate things. Schedule 1 will be outlining your demise but it doesn’t mean you are exempt from paying for the upkeep of the Building. Whether you have access to the garden or not is irrelevant if the lease defines that your service charge can be used to pay towards it. What you need to check is what the lease says in regards to the Building and the apportionment of the charges that you are liable for in regards to the Building. 

You are correct about the S20. If they have instructed works without consulting you, then you are only liable for a maximum of £250. If they reissue the S20 then you will be liable for the whole cost. 

user1977

What do you think "the boundary walls, gates and fences of the Building" was referring to then, if not the walls around the garden pertaining to the building?

michael1234

The question is very much in the realms of law. I think you might have good quality replies if you ask your question here https://legalbeagles.info/forums/

Regardless, I hope you get this sorted out. For me that's yet another reason not to buy leasehold.

saajan_12

ASLS91 said:

Hi all,

Long time lurker of this forum and recent new member. Have always found the forum incredibly helpful so thank you! Have now got an issue with our freeholder that I could use some specific advice on (have tried searching for similar posts but to no avail).

We have recently bought a leasehold flat in a period conversion. We are on the upper floor and the lower floor is owned by a housing association and rented out. The housing association are also our freeholder and act as managing agent for both flats. We have recently been sent a request for multiple thousand pounds to fix an external boundary wall in the back garden, despite having no access to garden. This seems unfair and we will struggle to pay this if it turns out we are obliged to. 

Keen to avoid paying, I have been poring through the lease and believe the following are the pertinent parts: 

In the prescribed clauses at the beginning, it says that the Property is defined in Schedule 1 ("The Premises"). This clause also says "in the case of a conflict between this clause and the remainder of this lease then, for the purposes of registration, this clause shall prevail". Schedule 1 defines the property as "all that property known as [Address] being the First Floor Flat as shown edged red on the attached plan" (note this does not include the garden or garden wall). It also states the premises includes various things (including the plaster of walls but not the actual walls themselves…). None of these things are the garden or garden/boundary walls. Schedule 1 goes on to say that the premises do not include: 1) "load bearing framework and all other structural parts of the building not included in the premises" 2) "The roof, foundations, joists and external walls of the building" 3) "The rear garden". 

After some back and forth where we have so far flat out refused to pay due to not having any access to the garden, the agent/leaseholder is now referring to a clause Under Landlords Covenants which states: 

"Subject to payment of the Ground Rent and Service Charges, the Landlord shall maintain, repair, redecorate, renew and (in the event in the landlord's reasonable opinion such works are required) improve...the boundary walls, gates and fences of the Building (if any)". 

They are suggesting that the Building includes the garden and its boundary walls. However, the Building is defined in the definitions at the start of the lease as:
"Building means the building of which the Premises form part and each and every part of the Building and any other areas the use and enjoyment of which is appurtenant to the Building whether or not within the structure of the building".

We disagree with this as 1) Schedule 1 makes no mention of the garden or boundary walls being included in the Premises 2) We have no "use and enjoyment" of the garden 3) The prescribed clauses state that Schedule 1 is gospel. 

Apologies for the long post and thanks for sticking with it so far! Would like some opinions on whether the freeholder has any grounds to obligate us to pay towards the repair of the wall. Interestingly, they have not yet mentioned escalating it (legal fees etc). They also have not provided us with any quotes as part of the Section 20 process (surely this isn't on either??)

Any help much appreciated

You're looking at the wrong thing. The bits you quote initially describe what constitutes your flat.. ie what you have 100% exclusive use of and responsibility to maintain. So the building structure, rear garden etc aren't part of your flat. 

This is different to the common areas that the freeholder is responsible for fixing, and usually able to recover costs 50/50 from the leaseholders. It doesn't matter whether these relate to areas you both use (eg shared hallway) or just part of the structure (eg the walls around your flat). The bit i've put in italics in your post hints at it ("boundary walls") but there may be something further about what the service charges cover. 

user1977

michael1234 said:

For me that's yet another reason not to buy leasehold.

I don't see that it has much to do with the type of tenure, the question is about the definition of the common parts. Would be a similar issue if the properties were freehold.

TripleH

I agree with the Op that it doesn't sound right that you are paying for rhe upkeep for something you have no access to.

Another argument for the HA is that in a block of flats you could have to pay for repairs to a small part of the roof on 5th floor at the other end of the building to your 1st floor flat. You get no benefit directly but are still liable.

eddddy

ASLS91 said:

The housing association are also our freeholder and act as managing agent for both flats. We have recently been sent a request for multiple thousand pounds to fix an external boundary wall in the back garden, despite having no access to garden.

...Under Landlords Covenants which states: "Subject to payment of the Ground Rent and Service Charges, the Landlord shall maintain, repair, redecorate, renew and (in the event in the landlord's reasonable opinion such works are required) improve...the boundary walls, gates and fences of the Building (if any)". 

What 'fixing' does the garden wall require?  Is it just a repair, or is it an improvement?

If it's an improvement, I guess you could try challenging it on the basis that it's not a reasonable improvement.


FWIW, most 'private sector' leases don't generally allow freeholders/landlords to make improvements and charge leaseholders for them.  It only tends to be Housing Association / Council freeholders who put that in their leases.

It's something to be very cautious of. A Housing Association (or council) might decide to undertake major improvement schemes, resulting in huge bills for leaseholders.  (Although maybe it increases the market value of their properties.)


If it's just a repair to the wall, the freeholder is likely to argue that you should have checked your lease before buying and checked the condition of the wall - and realised that you'd probably have a large repair bill at some stage.

canaldumidi

You are 100% responsiblefor the maintenance of your flat (the 'premises').

But you will also be jointly responsible for maintenace of areas outside your flat (the 'building') - the structure of the building, the roof, walls, foundations, and, yes, external walls like garden boundary.

If you read the lease further, I am 99% certain you will find this stated.