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SJB123

Damp and Freeholder Liability

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Hi Everyone,

My first time posting on here so apologies if this is covered or in the wrong place.

I am the leaseholder of a flat which I rent out - as is usual, we don't own the outer building and pay maintenance and service charges.

I had been renting out the flat but had always had a fairly minor damp issue - some flaking paint on a wall that would be periodically re-painted. I decided as we had a break in tenants to get it properly investigated as it seemed to be getting worse. 3 surveys confirmed there was rising damp with a defective Damp Proof Course and the pointing on the outer 2 walls was letting in moisture.

The freeholder has agreed with the findings and will take on the work, but has said the following is not their responsibility:

Carpets (around 8 months old, will need to be ripped up for the work)
Re-plastering the interior walls which need to be chipped away to carry out the work
Repainting
2-3 months loss of rent
Council Tax

I have contacted Direct Line who have said this is not insurable as caused by a 3rd party who have admitted liability.

Does anyone have any experience of this and know what the precedent is?

Many thanks 

 

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I have no experience of this situation but if I look at the situation from my own perspective i'd comment as follows:

* Surely carpets don't need to be 'ripped'  up.....thats rather emotive language. They can be carefully lifted, stored in another room and refitted on completion of the work.

* I'd have thought replastering interior walls was the responsibility of the freeholders as that forms part of the fabric of the building. Although, the devil is in the lease which generally lays out what the freeholders and leasehold are generally responsible for. Suggest you read the lease carefully.

* All the other items that they will not pay for seems entirely normal to me.

* Of course, you have the option of taking legal action.....possibly through the small claims court, for reimbursement of your costs. I'd recommend you seek legal advice first to determine if you have a case against the freeholder.

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Thanks for your reply.

Yes, 'ripped up' is probably a bit strong - it's more that the company is not going to accept any liability for damaging them so is covering themselves - I am perfectly happy if they can be lifted and refitted - a steam clean is going to be a lot less than new carpets.

I did question the plaster forming part of the building but they had said this is covered by contents insurance.

With regards to the rental income etc - the letting agent will not market the property and classes as inhabitable as it's a potential health hazard and they will not knowingly list with the issue.

I was thinking about this the other way round - if I had carried out maintenance that damaged any part of their building I am sure this would be a different story.

I will take a close look at the lease.

Thanks again

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The devil is in the detail of lease as RL states. Unfortunately leases can be very badly worded/drafted, and written in legalise which can make it hard for a lay person to interpret. 

Normally (depending on the lease) re-painting and plastering would be covered in situations like this and as the cost is ultimately paid by the leaseholder anyway via the service charge. I can only think the reason these costs are being  passed your way is:

1. The lease states they can

2. The freeholder doesn't understand the lease and self manages the block.

3.The freeholder also owns a lease in the block and is trying to get the total cost of the works down and therefore his contribution for his service charge will be less. This can be common.

 

If the cost is more than £250 the FH has to go down the S20 process and get quotes from 3 contractors and give you the option to put forward your own contractor. 

If the property is inhabitable while the works are being done thats what it is whether you are living there or a tenant. Ask to see a copy of the block insurance which you have a right to.

 

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It is not unreasonable to formerly request from the FH what extract of the lease states the issues you mentioned are the leaseholder responsibility. That will put the onus on him. 

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10 minutes ago, SJB123 said:

 

I did question the plaster forming part of the building but they had said this is covered by contents insurance.

There is absolutely no doubt that this information is incorrect.

1. Plastering and plaster board on interior walls IS part of the fabric of the building.

2. Plastering is almost never part of contents insurance.

Whoever you have spoken to clearly doesn't understand the situation.

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I agree and here is the court case to prove it:

Grand v Gill (EWCA) 2011 CIV 554 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/554.html

If you dont want to read all of it the relevant bit is:

 

Leading judgement of Lord Justice Rimer 

For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes’s observations as to the meaning of ‘the structure … of the dwellinghouse’ as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the ‘structure’. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’. I would accordingly accept that the wall and ceiling plaster in Ms Grand’s flat formed part of the ‘structure’ of the flat for the repair of which Mr Gill was responsible.

Lord Justice Lloyd :

Accordingly I would hold, as a general proposition, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises

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Yes, what Grampa has written.  Pass that court judgement info onto your freeholder. Of course making good by interior replastering is part of the fabric of the building and the responsibility of the freeholder.

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Thanks everyone for your replies - really helpful.

I will request details of the insurance and lease stating this from the Freeholder (they are a fairly large, private property management company dealing in commercial and residential properties) - they in-turn employ a Block Management company to manage the properties. I sense it is the contact in the block management company that is less experienced in these matters.

 

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