Landlord and Tenant

[Brill]

LANDLORD AND TENANT ISSUES

What is maintenance and what is an improvement?

a) Is an account relating to accountancy errors over the last 8 years either a maintenance or improvement.

 

b) In the last 2 years the Landlords, through an agent, has charged tenants for the removal of asbestos in common areas. Can the Tenant be charged?

c) In the last 2 years the Landlord, through an agent, replaced 'ties' between the outer wall and inner wall of the building. The apartment block was built around 1920 and converted to Flats in 1977. The tenants have paid for this work.

 

d) As part of the service charge the Tenant pays the Landlord for the costs of insuring the property. The roof of part of the building needed repair as there was damage due partially storm damage. In any event the agent arranged for the roof to be renewed and the tenants had substantial bills. Obviously the new roof is in a far better condition than at the commencement of the term, it is new rather than 50 years of age. Was this an improvement?

 

e) The Landlord is responsible to paint the exterior of the whole property. I complained that the painting was not professionally completed. On the next occasion the property was painted the Tenants had large bills for repairs to the window frames. Is the Tenant responsible?

 

[maroondevo52]

Hello and Welcome,

 

I'll move this thread to the appropriate Forum.

 

Regards.

 

Scott.

[NewSAHD]

Hi, will add a few comments to your original post.

 

I would add that we may well be opening a can of worms here though .

 

I can also foresee more questions and answers for the moment, but I hope the following helps to explain a few matters at the outset.

 

Once you have read through please post again.

 

 

LANDLORD AND TENANT ISSUES

 

What is maintenance and what is an improvement?

 

In broad terms "maintenance" is looking after the existing fabric of the building, by way of ad-hoc repairs, renewals, replacement, or by way of a planned preventative maintenance programme.

 

Different Agents use different acronyms/terminology for the latter, the "PPM's", but it's essentially all the same thing. PPM's can be extended out many years in advance, to cover future costs for redecoration, replacement of carpets, lift renewals, and so on. Which, in turn, provides some basis to calculate contributions towards Sinking Funds.

 

...whereas "Improvements" are the introduction of something new to the fabric of the building.

 

The relevance of making a distinction between the two is that maintenance is, more often than not, recoverable through the Service Charge, whereas, often, improvements are not.

 

The key is to consider what the lease allows too.

 

To me, the answer is self-evident, but I fully appreciate it a question that gets asked of Agents much more frequently than you might imagine.

 

a) Is an account relating to accountancy errors over the last 8 years either a maintenance or improvement.

 

Neither, I think you may be confusing matters here.

 

What is the nature of the accounting errors though? What makes you think there have been errors?

 

Please advise though before I have egg on my face.

 

b) In the last 2 years the Landlords, through an agent, has charged tenants for the removal of asbestos in common areas. Can the Tenant be charged?

 

If it was reasonable for the asbestos to be removed then in broad terms yes.

 

That said, there is a process the Agent/Landlord needs to follow, such as "s20" requirements (a whole other post, but can limit the amount an Agent/Landlord may charge).

 

And all that before considering whether the removal was "reasonable". A key word, perhaps, is was it "reasonable"? If not, you can consider challenging the costs through the LVT (Leasehold Valuation Tribunal).

 

Do you have a copy of the original asbestos report undertaken when the legislation surrounding this was introduced?

 

See also Control of Asbestos Regulations 2006 for an overview.

 

More importantly, perhaps,

- what is/was the cost, including fees,

- how were you notified of the works/what consultation was undertake by the Agent and when - and lastly, for now, how many flats/other premises are there in the estate?

More questions may follow, but your answers here may help point us in the right direction to see if can help.

 

c) In the last 2 years the Landlord, through an agent, replaced 'ties' between the outer wall and inner wall of the building. The apartment block was built around 1920 and converted to Flats in 1977. The tenants have paid for this work.

 

Wall tie failure, pretty essential work, but was the s20 process followed?

 

Were the costs (works, fees, and so on) reasonable too?

 

As I say, more questions than answers.

 

Again, more importantly, perhaps,

- what is/was the cost, including fees,

- how were you notified of the works/what consultation was undertake by the Agent and when - and lastly, for now, how many flats/other premises are there in the estate?

More questions may follow, but your answers here may help point us in the right direction to see if can help.

 

(This bit, above, cut and pasted from the previous section, of course)

d) As part of the service charge the Tenant pays the Landlord for the costs of insuring the property. The roof of part of the building needed repair as there was damage due partially storm damage. In any event the agent arranged for the roof to be renewed and the tenants had substantial bills. Obviously the new roof is in a far better condition than at the commencement of the term, it is new rather than 50 years of age. Was this an improvement?

 

Improvement? In broad terms, and if a like for like replacement, then "no" it was replacement BUT there is likely to be much more to this than a simple yes or no.

 

Again, were the works over-specified? Were the costs reasonable? Were the fees reasonable?

 

Was the s20 process followed correctly?

 

Again, need to ask similar questions to the cut and pasted questions, above.

 

And, to my mind, if an insured peril then why so expensive for the leaseholders?

 

Your post raises more questions than answers, so I will revisit the reply I am giving now - and will edit as necessary.

 

e) The Landlord is responsible to paint the exterior of the whole property. I complained that the painting was not professionally completed. On the next occasion the property was painted the Tenants had large bills for repairs to the window frames. Is the Tenant responsible?

 

What was the outcome of your first complaint?

 

Window frames? Possibly, but you would need to read your lease for a definitive answer.

 

Again, need to ask similar questions to the cut and pasted questions, above.

There is potentially quite a lot to check from what you have said, so post again and will consider the matter further.

 

If you wish to PM me the name of your Managing Agent and also the Freeholder then, in return, I undertake to only use the information provided to assist you if I can.

 

Hope that helps, at least for now.

Edited March 18, 2010 by NewSAHD
Post tidied up a bit, for now. 2nd edit - more questions added

[MrShed]

I may be asking something ridiculous here, but is this a residential let or a commercial property?

 

We could do with knowing more of the context behind the queries as well.

[NewSAHD]

I may be asking something ridiculous here, but is this a residential let or a commercial property?

 

We could do with knowing more of the context behind the queries as well.

Sounds residential to me, due to " removal of asbestos in common areas." and more particularly "The apartment block was built around 1920 and converted to Flats in 1977" .

 

However, not such a daft question, as have had to make a number of assumptions at the outset.

 

It is also a relatively common misconception amongst landlords and their agents that commercial service charges are relatively free and open - which in broad terms I suppose they are - but add residential in to the mix and the requirements for residential service charges comes in to play. And that is sometimes missed.

 

I've read elsewhere and seen first hand too how expensive a mistake that can be for them . And then been instructed (in my former life) to step in and sort. Great fun.

[NewSAHD]

We could do with knowing more of the context behind the queries as well.

 

Definitely!

[Brill]

Many thanks for your interest.

I am an attorney acting for someone who works abroad and have been concerned over the years that the Bills have been mounting.

The property is divided into 18 Flats and each Tenant pays 1/18th of the cost of maintaining the building

a) service charge

The latest Service Charge demand included an item of Major Works and the account was in the name of the Managing Agent, a Chartered Surveyor. I sent a letter asking for details as I was not aware that any major works had been done to the property in the relevant financial year. I refered to 'maintenance' as the Landlord is able to make charges for maintenance. When the Managing Agent was telephoned and asked about the charges the Account Section said that the account was in respect of 'an oversight of accounts which goes back eight years'. I have had no substantive reply to my initial letter and have reminded the agent that I require a reply.

I believe that the agent has been trawling through past accounts and, in this financial year, has included a 'final payment' for some works done in the past - I do not know what!

For each financial year the agent produces a receipt and expenditure account and, so far as I am concerned, where an account has been settled that payment should be final.

I am still pressing the agent for full details and have reminded the agent of his obligation ubder the L & T Act 1985 that information should be provided in one month (the agent is already in breach).

b) asbestos

I have looked at the Lease and the Landlords duty to maintian extends to:-

the main structure of the Building meaning all exterior walls thereof and all interior walls of the building other than dividing rooms within the building and shall include the outside spouts guttering and down-pipes but does not include the parts of the walls ceilings and floors (which are within Flats - the Tenants responsibility) and the roof joists and timbers supporting the roof and the tiles slates lead glass felt or roofing materials and includes any chimney stacks and props and all ornamental works on the eaves or the roof of the building

Maintenance shall impose an obligation on the Landlord

To maintain in good and substantial repair and condition the main structure and roof of the Building the foundations thereof the floors and wall of any balconies and the glass house (save in so far as the obligation to repair and maintian the same may at any time be otherwise imposed on any Tenanat thereof) and the Boundary walls or fences and maintaining the staircaase and common entrances halls passages and landings in the Building in good order and condition and renewing such parts of the same as and when the same shall become necessary'

There is no mention of the cellars in which the asbestos was found.

When the asbestos was found the cellars were closed (this Tenant never used them). I am not aware of any consultation (I did not get any letter as the Agent deals with me). I am not aware of any notices. I do not know the sums involved.

c) Wall ties

Sorry but no Notices and I do not know the full costs but I belive that estimates were obtained.

The Lease is detailed about what was included as part of the maintenance but wall ties are not specifically mentioned.

d) Roof

Again I have no details.

e) Painting

The Lease requires the Landlord 'To paint all the wood and metal work of the outside of the Building (including the outside of the window frames) and all other outside parts usually painted with at least two coats of paint in every fifth year of the term...'

I was at the Flat when the painter was doing the rear windows. The Flat is on the third floor and a ladder was placed up to the window and there was one coat of gloss paint put over exisitng paint, I did not see any preparation work. I wrote to the agent and complained and nothing happened.

When the painting was to be done again Tenants (on an individual basis) were charged for repairs to frames (which in this flat are minimal as a previous tenant had had the windows replaced with plastic). I asked the agent to obtain some form of warranty for the work done but my letter was ignored

I will visit the Flat and see what paperwork I can find. I have found that any correspondence with the agent is a waste of time.

Once again, many thanks for your interest

[NewSAHD]

Once again, many thanks for your interest

 

Not at all, you're welcome.

 

Be wary too of posting Agent and Freeholder names on the main forum, as google seems to pick up on them quickly. No point tipping the Agent off, not just yet.

 

I know, for I used to lurk on forums such as these for many years! In more recent times I have been free and able to, instead, actually offer some assistance, where I feel I can.

 

So, please feel free to post again, or PM me when you have more details, and will do what I can to assist.

 

What you send will doubtless generate more questions and answers - and in the meantime I will give some thought to what you have just posted too.

 

As before, whatever is sent to me by PM will only be used to assist you.

[Brill]

The Tenant has requested me not to do anything more. The Tenant has decided to buy a freehold property and move rather than face greater bills in the future.

 

Thank you for your help

Brill

[NewSAHD]

As before, not at all, you're welcome.

 

Two last thoughts - of which you are doubtless well aware, but I offer them all the same in the spirit of helping out:

 

a) Your Client can still question the level of Service Charges raised and/or Major Works proposed / undertaken and so on i.e. are the charges "reasonable", if not, then they can be challenged at the LVT (Leasehold Valuation Tribunal).

 

b) The counterpoint, however, is that when you/your Client comes to answer any precontract enquiries you will need to give honest answer(s) to questions such as "have you had any reason to question Service Charge levels" and/or "are you aware of any dispute with the Freeholder/Managing Agent" or some such.

 

This leaves you in an interesting position

 

My work around has been to answer something to effect of "the leaseholders had previously questioned the Agent over the costs of X, Y and Z, although were satisfied as to subsequent answers given, as per the copy letter DATED now provided. Whilst it seems the more usual and inevitable day-to-day issues may arise from time to time the management of BLOCK appears now to be on a more even keel. We would be pleased to answer any further queries you may have."

 

My view of such matters is that you then tend not to hear of any further queries - unless there is, reading between the lines, something seriously awry - but if you do hear back and answer honestly (and the sale proceeds) then it's the purchaser's look out.

 

I mention this only because I have had "new" leaseholders complain, upon moving in, that they were not told of X, Y and Z and to find that the problem lays fair and square with their conveyancer at time of sale - as they were clearly told at the time of X, Y and Z.

 

As I say, you are doubtless well of all this, but with block management, Service Charges and Major Works it's best, in my personal opinion, to give as much to the prospective purchaser as you can without scaring them off too much.

 

Otherwise, later, it does come back to bite

 

Hope all that helps.

Edited April 2, 2010 by NewSAHD