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Problems with negligent owner of upstairs property
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Joasis


Posts: 5
Joined: Aug 2014
Post: #1
15-08-2014 10:23 PM



Hello,

I am glad to find this forum - so useful and so many great topics!
I thought I would ask for a bit of advice (not that se23 related, but hope someone can help) in a dispute I am having with an owner of flat above mine.
We bought a leasehold groundfloor flat in two flats house 2 years ago. The freeholder is also an owner of the flat upstairs which they let to private tenants.
Since moving in, we had very little contact with them, mainly because they live somewhere else and DID NOT want to provide us with their actual address saying we can send correspondence, if needed be, to their flat above ours and they collect post regularly.
Sounded weird. Since that time they also never bothered to come down and speak to us as new leaseholders or inform us how they will manage the property as the freeholders.
We started having issues 18months ago when we had a leak from their flat into our kitchen. Small leak, which was continuing for months until we started to get wet patches and mould. It was impossible to contact them, but finally came and we managed to get upstairs and locate the problem (their 'engineer' did not find anything). Apparently was fixed. There was already quite an unpleasant conversation with an attempt to blame the damaged walls on condensation etc.
A year later we had bigger leak and this time, again after silent few months of water trickling down the walls, the damage is extensive.
We tried getting them to come and speak to us about it, but no reply.
Got a claim through house insurance, but these people were supposed to pay back our £500 excess as they have neglected the leak for months since our report to them.
8 months fast forward (still no show, no answer to calls) we had another leak=flood into our storage room this time. It is based underneath their staircase leading to the flat. The stairs are all cracked and have holes so water comes through easily down. Many reports of small leak then a big flood and attempts to get them to fix the stairs...Finally a response saying they CANNOT find anyone to fix the stairs and if we know someone then we should get them to fix and they will pay money back.
Of course I said no as I do not believe a word of this woman.
The main issue here is that she does not care, but the storage room contains our electrical fuse box, electrical meter, washing machine and gas boiler, and our shoes etc. Everything was soaked and fortunately I was home during last downpour and secured what I could with plastic sheet and buckets. The top light stopped working.
I was so frustrated but did not know what to do next.
Hence my reach to you for your help.
Are there any authorities that can help with this?
Is there anyone that can force them somehow to act on this given it poses a danger to our safety?
They do not fulfill their freeholders duties either...

It is our first property so we have very little experience in such matters and I feel helpless here.

Additional info:
Freeholder is actually that woman's grandfather who is old and probably not in the country. His daughter came with the granddaughter once (after first leak) and said that granddaughter is now managing the flat upstairs, but gave only first names and phone numbers.
I cannot trace them.

Sorry for long post - was not sure how to best describe this so it gives you a whole picture.

Thanks in advance for any advice.

PS> called environmental health at Lewisham- no answer, left a message, but not sure what they can do.

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BT


Posts: 162
Joined: Jul 2003
Post: #2
16-08-2014 07:20 AM

Environmental Health usually need akick up the backside to get them moving. As I see your problem this could come under the definition of a Statutory Nuisance. Worth investigating.

Statutory nuisance is defined by the Environmental Protection Act 1990

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lacb


Posts: 623
Joined: Mar 2005
Post: #3
16-08-2014 10:19 AM

I think you have the right to hold the freeholder's contact details. Free advice available here:
http://www.lease-advice.org/

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Tinkerbell


Posts: 356
Joined: Dec 2007
Post: #4
16-08-2014 09:48 PM

Hi Joasis, firstly - comiserations! I had a very similar problem, same set-up, different (known) freeholder. In the end I got so frustrated, that I sold the flat and bought elsewhere in HOP. Having spent a lot of time and money doing up that property, I just couldn't stomach having constant negligent behaviour from the tenants above.

You should have contact details for the freeholder and the second leaseholder (in this case the same person, if that is correct) in your leasehold paperwork, which your solicitor should have checked when you bought the property. I would try to direct written communication towards the actual freeholder in those documents, and if that isn't working I would consider forking out a fee and get a solicitor to write to them. In any case, make sure you document everything, with photos, times etc. Leases vary a lot, but both you and the other leaseholder, who is also the freeholder, if I understand that correctly, have a duty to keep those parts of the property they are responsible for in good working condition and above all, safe. If her tenants are putting the structure, or you, at risk, then that is probably your best angle. But it can be a long drawn-out process... Very sorry not to have anything more positive, perhaps you'll get a reply from a solicitor here on SE23. All the Best!!

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Joasis


Posts: 5
Joined: Aug 2014
Post: #5
17-08-2014 04:52 PM

Hi All,

Thank you for you replies.
I have a name of the freeholder but it is that woman's grandfather and the address they gave us is of the property upstairs. I queried that during the sale but previous owner's solicitor replied that this is the address they gave them.
I also questioned freeholder daughter when she ONCE came by and she refused to give me their actual address.
I will look into the leaseholders advice centre- perhaps they have any info how to best handle this.
For the council - will be calling again tomorrow.
And it is sad Tinkerbell that you had to give in and move at the end. It is quite depressing thought for me as given the prices nearly doubled up in the last two years here I would be forced to move out of the area. And I really like it here being next to Blythe Hill Fields and near good schools.
Sad
I think I will try the solicitor route, though they do not pick up post from the flat upstairs?

Thanks
J

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Chipcity


Posts: 42
Joined: Nov 2012
Post: #6
18-08-2014 02:54 PM

Hi,

I assume that your solicitors on your purchase checked the address on the freehold title ie. the upstairs flat.

A practical way of trying to find a service address for the freeholder is to check your ground rent and service charge demands. Presumably you have done this and either the address is given as the upstairs flat or no address is given.

Ground rent:

Since 28 February 2005 any demand for ground rent by a freeholder, or their managing agents, must be made in a “prescribed form” as set out in Section 166 of the Commonhold & Leasehold Reform Act 2002.
If the ground rent is not demanded in this prescribed form, and completed in accordance with section 166, the tenant is not liable to make payment unless, and until, it is properly demanded.

The notice must contain the landlord’s address for service.

Service charges:

Section 153 of the Commonhold and Leasehold Reform Act 2002, with effect from 1 October 2007 requires that "A demand for the payment of a service charge must be accompanied by a summary of the rights and obligations of tenants of dwellings in relation to service charges" & accordingly a tenant may withhold payment of a service charge which has been demanded from him / her if the requirement to provide the summary is not complied with in relation to the demand"

Any demands must also state the address for service of the landlord pursuant to section 47 of the Landlord and Tenant Act 1987.

Failure to provide a correct address for service means that you may be entitled to refuse to pay ground rent and service charges until such sums are properly demanded.

A practical way to recover monies is to make an on-line small claims Money Claim and if you have not been given any alternative address and the freehold title remains registered as the upstairs flat then you are entitled to include such address in the application the upstairs flat. Check your lease to check that it does not contain an address for service. If the claim is not passed on to the freeholder by the tenants then you will get a default judgement that your landlord would have to contest on the basis that he was not served but you would find out the address and the court should be sympathetic if you can demonstrate that you tried to obtain it.

The procedure is very simple and there is very limited exposure to costs in the event that the judgement went against you. Generally, solicitors fees are not recoverable by either party.

If there is a legal charge registered against the freehold then it is worth getting a copy (on-line via the Land Registry web-site) to see whether an alternative address is provided.

Alternatively, if the issues in questions are not strictly limited to a fixed amount, i.e. nuisance / failure to repair then you can apply to the First Tier Tribunal that is a relatively easy procedure and is set up for lay persons. Also, costs are not generally recoverable (i.e. legal costs) unless the landlord can recover them under the service charges under your lease but even if so, you can as part of the application apply to have any such costs deemed irrecoverable if you can demonstrate to the Tribunal that the application was necessary (you should seek solicitors advice on this point and expressly point out that such exclusion of costs should be included in the application as I have seen it overlooked and tenants paying for the landlord's solicitors fees via the service charge even when successful in the judgement). If you have a telephone number or e-mail address you should first serve a seven days pre-action notice and request a service address to demonstrate to the Tribunal that you have been reasonable.

Also, if any past service charges or ground rent have not been demanded correctly you could seek the recovery of such sums although it depends on the amounts in question whether it is worthwhile

In summary, there is a significant statutory burden on the landlord and it is often the case that problem landlord's have not complied with a number of the statutory provisions. For instance have you seen a copy of the Fire Risk Assessment etc.

I think that seeking the advice of a solicitor would be the first course of action rather than considering moving as you may experience difficulties on a sale without proper service charge accounts being provided and landlord's replies to enquiries.

The first place to check the landlord's obligations is your lease.

The above is given without any liability and you should seek the advice of a solicitor.

This post was last modified: 18-08-2014 03:01 PM by Chipcity.

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Mr_Numbers


Posts: 511
Joined: May 2012
Post: #7
18-08-2014 03:27 PM

See a lawyer, Joasis - and when you're making the appointment, say that you would like to email them the background to the case, then send them your posting from here (plus any other details) and Chipcity's comments, to help make the best use of the time available in your appointment.

Good luck.

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Tarquin


Posts: 28
Joined: Mar 2014
Post: #8
18-08-2014 05:11 PM

Hello - Although I don't know the finer legal points of your problem - I would suggest it goes to court as you definitely have a case then in the event of your success and awarding of compensation - if they don't pay you can get a Bailiff's from the Sheriff's Office for about 60 quid to get payment from them or take goods to sell to recover the money owed. The debtor cannot evade or refuse to deal with one of these bailiffs and if called to the scene the police will support the bailiffs - quite a shock to people like your neighbour.

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Jane_D


Posts: 189
Joined: Jan 2010
Post: #9
19-08-2014 11:22 AM

Baliffs would need an address to take the property from, though - maybe I've misunderstood but I thought the upstairs flat was the only address, and that nobody is living there?

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Joasis


Posts: 5
Joined: Aug 2014
Post: #10
19-08-2014 11:26 AM

Thank you all for your valuable comments and advice.
Chipcity this is extremely useful to know where to go.

I have checked the Land Registry again and the leaseholder/freeholder address for the property upstairs is the same as it is on our lease documents - it is not their actual address. The name is the grandfather of woman i am dealing with whom I have never seen.
With regards to the service charge - there is none and £150 pa for ground rent that have never been claimed by the freeholder. I stopped worrying about not paying when I realised they do not maintain the property at all but should I ask them for it? From the below regulation I assume that I do not have to do it unless it is properly demanded.
The previous owner re-assured us through the solicitors that books are up to date and that there were no disputes but do not think these were seen by anyone and I suspect that he just did not inform us what was going on but these problems existed before.

Would on-line small claims Money Claim be suitable place to start recovering the excess money £500 the landlords was supposed to pay us back due to the leak in the kitchen before? They said they would cover it but never showed up since then.

It looks like the only way forward would be to use legal help. Just a bit concerned this may be costly exercise, but given we cannot just sell and move right now, it may be the only one Sad

Thanks for your help. Really appreciate.

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Joasis


Posts: 5
Joined: Aug 2014
Post: #11
19-08-2014 11:28 AM

Yes, the only address known for the freeholder and leaseholder is the address of the property upstairs. This property is let to tenants and the tenants do not have their address either!
Crazy...

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Mr_Numbers


Posts: 511
Joined: May 2012
Post: #12
19-08-2014 01:41 PM

When you contact the lawyers ask them how much their first session fee will be and how much they might expect to charge thereafter. It will be difficult for them to tell you exactly until they see all the details, but they should be able to give some kind of indication.

Quite honestly, you may find that having a half-decent lawyer actually turns out to be a bit of a bargain if it means you get this expensive and unpleasant saga brought to an end.

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Jane_D


Posts: 189
Joined: Jan 2010
Post: #13
19-08-2014 03:43 PM

Are the upstairs tenants willing to help you out with this? If so, surely they must have some method of contacting their landlord, and if not, I'm pretty sure it would be legal for them to have the work carried out, get receipts and withold that amount from their rent. Either the landlord would let it go without comment or would contact them about it, in which case they could present the receipts and let them know that you have been considering legal action.

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Chipcity


Posts: 42
Joined: Nov 2012
Post: #14
21-08-2014 05:45 PM

Hi,

You are correct that you do not have to pay the ground rent until you receive a valid demand and I believe that the relevant statutory limitation period is six years for ground rent - although do not quote me on that.

If you do receive a demand you could then check the address at the Land Registry to ascertain whether it is also owned by the freeholder. In any event, you will entitled to serve proceedings using the address stated in the statutory rent demand notice so you will have made some progress and you can use this address for a Tribunal application regarding any breach of repairing obligations and the small claims court for the alleged £500.

You could remind your freeholder that on receipt of a valid demand that such sums will be paid in the hope that you receive a valid address. There is of course the practical issue of how you reach your freeholder.

There are a number of search agencies that for a relatively small fee will attempt to locate an address and I have successfully used them in the past for absentee landlord claims. I will try and locate the company that previously used although it was a number of years ago and a google search may be more effective.

Do you have any written evidence of the agreement to reimburse to you the £500 excess although given the limited risk of costs in the small claims court it may, even if not, be worth pursuing it as you may get a default in judgement and your freeholder will be at risk of a CCJ.

There is some merit in not pursuing matters through the courts as in particular, such matters will have to be disclosed on a sale. However, the situation may have reached a stage whereas you believe that you have no option than to try and rectify the situation going forward.

I have made the assumption that there are only two flats in the building and if so, unfortunately a Right to Manage claim is not possible in these circumstances.

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Joasis


Posts: 5
Joined: Aug 2014
Post: #15
23-08-2014 11:16 AM

Hello,

Thank you again for your help.

Since my last post we have made a little progress. Last week we covered the staircase with thick tarpulin as previous dust sheet cover got ripped quickly. The tarpulin covering made the stairs pretty challenging to use, plus rainwater gathered in places making it slippery. We warned the tenants upstairs and encouraged them to complain the owner about it. The girls were bombarding the owner with texts and photos saying how dangerous the set up is and we were quite glad about it as it is another party helping us to get the owners action.
However on Monday we had to take the tarpulin out as it was too dangerous for the tenants and my partner used expanding insulation foam to patch up some obvious cracks and holes in the stairs. It looks pretty terrible now with bubbly green mass, but we do not care.
So Tuesday late evening, the landlady knocks on my door without any notice, how nice. I was trying to get my little child to sleep so you can imagine I was a bit annoyed.
Anyway, she came with some man to do a quote for stairs repair and they wanted to see the storage and how the water comes through.
After 1h of debating where to water goes through (pretty pointless conversation as whole staircase is so crackled and it was patched up before - so there was a problem before clearly) that man said he does not know how to fix it?? Where did she get him from? We suggested that the top layer (which was against regulations in terms of steps height) should be removed, the cracks and holes filled and then the entire staircase covered in some waterproof material. I do not know what that could be as I have no building knowledge but fixing a step or two will not make much difference.
The landlady kind of agreed with me, but not sure what the builder will come up with. I told her on a side she should get another quote as this builder did not seem to be extremely knowledgeable but I suspect it is another 'friend of a family' they tend to use for all works. Then she wanted to shoot off so we stopped her and asked for a chat while she IS finally here. She could not stay of course, so we just mention we need to talk about this, other works needed to the property as well as the excess money she said she would cover.
She said that one thing at a time as of course the staircase if her priority! And left...
Yes, we would like to resolve this amicably if possible without using the courts as we would be moving at some point, but I am also wary this woman is cheeky and will want to get away from as much responsibility as she can.
No, we do not have her word for paying the excess in writing Sad
I did mentioned this in an email to her but in her reply she did not acknowledged that point. So I guess this is not confirmed by her in writing.
Thanks for the info on ground rent - I wonder if they ever send us a request/invoice. Perhaps they know the regulations and hence opted for no claiming it so they do not reveal an address.
Yes, indeed, only two flats in this house.

Google searches that I tried to run found the landlady (the granddaughter of freeholder and possibly the actual leaseholder of upstairs flat) as i finally have her surname but it only links to the address upstairs based on electoral roll and to an article that she was a friend of a woman who gave birth and strangled her newborn while they were holidaying abroad!!!! Not a nice story there.
Anyway.

I think that if we do not have any further action and works starting within a week we will seek solicitor's help to draft letters and to demand a meeting and payment of money due along with proper address.

Thank you all, you are great.

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Tarquin


Posts: 28
Joined: Mar 2014
Post: #16
23-08-2014 02:03 PM

Your situation looks extremely un-enviable what I've found when dealing with problem people - is to keep up the pressure using every available legal weapon - most people give in as usually they are used to getting away with bad behavior due to no one previously standing up to them.
Hard work but worth it in the end - it might deter them from doing it to anyone else in future.
Good Luck and keep at it.

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