Chimney liability Query

Lasabassa

We live in a converted house that is now two flats, both owners live in the properties and we share the leasehold 50:50. We recently carried out a chimney sweep with the view to install a fire for our flat, during the sweep they discovered that the upstairs neighbor had drilled a hole for a cable into the stack meaning we would be unable to install a lining or use the fire because smoke would go through their hole etc. This hole and cable is preventing us from installing lining etc and to complete installing a working fire for our flat. The upstairs neighbours said that as this hole was made before they purchased their property they are unsure if they are liable for fixing it. They said they will speak to a lawyer to get advice. Anyone have any experience with this and who is responsible for fixing this? Thank you!

subjecttocontract

I don't know the legal position but it seems to me that as you are the one that wants to use the chimney flue, it's entirely reasonable to expect you to pay for the work to move the cable.

Slinky

subjecttocontract said:

I don't know the legal position but it seems to me that as you are the one that wants to use the chimney flue, it's entirely reasonable to expect you to pay for the work to move the cable.

Is it though? Surely the OP is entitled to use the chimney for it's intended purpose, which is not as a cable run.

subjecttocontract

We don't know that The OP has an entitlement

The property is managed on a 50:50 basis. That means they both have access to the shared facilities and presumably the chimney is a shared facility.........or perhaps it's just the ground floor that has a fireplace ? The owner of the other flat used it's access first. If the OP had installed a liner in the chimney first could the upstairs flat owner expect the OP to remove his liner so he could install his cable......I don't think so.

Probably sharing the cost of moving the cable might be the best outcome. 

Jonboy_1984

Did the previous owner of your flat use the chimney, if not it’s possible they gave the previous owner of upstairs consent to run the cable…

What sort of cable is it?

subjecttocontract

We should also ask if there is anything contained in the lease about the chimney.

eddddy

This is potentially very complex - from a legal perspective. Issues include:

• A hole was drilled through a wall into the chimney...

• According to the lease, who 'owns' that wall that was drilled - the freeholder or the other leaseholder or you?

• If the wall belongs to the freeholder, does the lease say that freeholder consent is required to drill holes in the freeholder's wall?

• Did the person who drilled the hole have the freeholder's consent?

• If the freeholder's consent was not obtained, it's a breach of the lease

• The current flat owner will be responsible for any breaches of the lease, even if the breach was done by a previous owner. So the current owner would have to pay for filling the hole.

But...

• According to the lease, who owns the chimney - the freeholder or the leaseholder (you)?

• If the chimney is owned by the freeholder, does your lease allow you to install a lining and use the chimney?

If the lease doesn't allow you to use the chimney, maybe you should consider getting a 'variation of lease' to make it allowed - which might cost £1k to £1.5k in legal fees.

Otherwise you might have issues when you sell your flat, and/or a future 'shared freeholder' could potentially take legal action to make you remove the liner and stop using the chimney.

Lasabassa

Thanks all. We own half of the freehold and half of the leasehold, upstairs own the other half. 
We share a chimney breast but within this there are individual flues for the property, upstairs have drilled into our flue. My flue is not stated as a common area in the lease. If anything I would say the breast may be defined as a party wall if anything.
- The lease does not reference that we are not allowed to use the chimney.
- The lease does state 'Throughout the term of the lease it is your responsibility to repair the exterior and interior of the property being the structure of the building and to keep it in a good state of repair and condition. This includes the party and external walls, the roof, the foundations, any footpaths, the hall, passageways, staircase, pathways etc.'
- And further states 'You are not permitted to make any structural alteration or addition in or to the property without the Landlord’s prior written consent. In order to obtain this consent, you must provide the Landlord with all relevant planning and/or building regulations consents and existing and proposed plans. If works are carried out without the landlord’s consent this would amount to a breach of the covenants imposed by the lease'.
- And,  'Although the lease does allow for alterations to the Property subject to consent, it is very important that you understand that alterations which involve structural changes to “boundary walls” which are NOT included in the demise, are not alterations which fall within the usual provisions contained in the lease. For example, if your alterations involve any works to the structure of the exterior walls or roof, the Landlord can lawfully refuse permission. You can only lawfully, subject to consent, make structural alterations to your part of the premises and not to the fabric of the building'.

So no it is not my understanding they can damage a shared area, it would be like me drilling a hole in their wall and then asking them to repair it.   

Lasabassa

I think it is a cable running from their TV. The tv was left behind by the previous owner, who did own both flats before selling them on. I assume at the time he probably thought as he owned them both it wasn't an issue that he breached the party wall and didn't follow the leasehold requirements set out. 

eddddy

Lasabassa said:

We own half of the freehold and half of the leasehold, upstairs own the other half. 

Just to clarify - the situation is almost certainly as follows...

• You own a leasehold flat
• Your neighbour owns the other leasehold flat
• You and your neighbour jointly own a freehold building that contains the 2 flats

Lasabassa said:

My flue is not stated as a common area in the lease. 

That's not really how leases work.

• Your lease will state what is included (demised) with you flat
• Your neighbour's lease will state what is included (demised) with their flat
• If part of the building (e.g. the flues) isn't included in either lease, then it belongs to the freeholder. So it sounds like both flues are jointly owned by both of you as joint freeholders.

Lasabassa said:

- The lease does not reference that we are not allowed to use the chimney.

Again, that's not really how leases work.

• If the lease says you can use the chimney, then you can use it
• If the lease doesn't say you can use the chimney, then you almost certainly can't

As I mentioned before, the cleanest way of dealing with this would be to get a lease variation,  i.e. Change the lease to say that you can use the chimney (and perhaps include the chimney as part of your flat), or at least have written consent from the joint freeholders.


Alternatively, you can come to an informal agreement with your joint freeholder that you will use the chimney. But that could cause problems when either flat is sold.

• If the neighbour sells their flat, your new joint freeholder might tell you to stop using the chimney because you are breaching the lease
• If you want to sell your flat, a buyer (or their solicitor) might be worried that using the chimney is breaching the lease