Leasehold & Damp problems

[Fringer]

Hi

This is a long one!! Sorry in advance

 

My husband and I purchased our leasehold property 9 years ago come this November.

We have had a constant problem with damp, especially in my sons bedroom.

I've contacted the company who carried out the damp course over the years as in our leasehold contract it stated there was a 30 year guarantee and twice they have been round to re do it only the damp keeps coming back.

 

I had them round for a third time and was told that the black mould growing up my sons wall was only condensation and told to move all the furniture away from the walls! How anyone can live with all their furniture in the middle of the room is beyond me but still...

I done the best I could and washed down the walls again. (His room has had to be decorated every 9 months to a year because of the smell of damp). The walls are black again now.

 

In June of this year I called a damp expert round to have a look. He put his damp detector thing on the wall and said there is definitely rising damp and the damp course needed re-doing.

 

I sent the managing agent (who is also a local estate agent...) the copy of the damp report and quote. He in turn got his company round (the ones who had originally done the damp course) and I was told that yes the walls were damp. I would need air vents fitted and the damp course would need to be redone as our walls are 12 inches thick and they had only gone in 3 inches and never filled up the holes hence water was still getting in.

 

This was back in June. August 21st two men turned up and put an air vent in my sons room and my bedroom and I asked about the damp course. They didn't know anything about it.

 

We've also got a problem in our dining room which we believe has been a pipe coming from the upstairs flat that has been leaking. (Our place is a house spilt into 2 flats, we have the ground floor, the managing agent is the freeholder who has the upstairs flat) either that or the pipes in my bathroom (which was only renewed in January this year) are leaking (which we are not sure about) but decided to try and claim on the buildings insurance, this has to be done through the managing agent.

I've been emailing the managing agent every few days asking what is happening as I am waiting to re decorate my sons room AGAIN and have now been told that the damp course doesn't need doing at all. Also the damp in my dining room cannot be proven to be coming from the pipe in the wall therefore he will not allow me to claim on the insurance for the water damage from the pipe or bathroom.

 

We have paid a maintenance charge every month for the last 9 years and all we have ever managed to get him to pay for was a new gutter at the front of the building as my room was damp and that was caused by a leaking gutter.

 

Do I have a leg to stand on if I get the work done in my home ie another company round to carry out a PROPER damp course, the re-decorating of my sons room and through lounge diner and charge him for it?

[Conniff]

I fear that you will only get justice/recourse by getting in and paying for your own experts. If this should prove in your favour, then you can claim it back from the Freeholder.

[andydd]

I'll be back later to add my thoughts on this.

[andydd]

First thing you need to find is your lease, this is your contract between you and the freeholder and will give certain obligations to you both, normally the freeholder would be responsible for the structure of the building (after its his, you as leaseholders just rent), the Fh would be obliged to reapir the structurwe, outside, rood, etc and whilst under no specific obligation you are free to redocrate/furnish the insides.

 

Not sure what you mean by 'leasehold contract' mentioning damp proofing, the lease would be unlikley to mention such things like damp proofing but it may be included as part of the conveyancing 'pack'.

 

Ultimately though it appears that the managing agent/freeholder is responsible for carrying out the repairs and you should continue to pester him, he is laying himeslef open to damages if he doesnt fulfill his repairing obligations under the lease, there are also further obligations under common law and health & safety law, etc

 

But be aware that you may well have to pay for this work to be done and it would be recovererd via the service/matainence charge, although if its still covered by some sort of gaurentee then it may be covered by that.

 

As for your last question, in theory yes but you should follow all other routes before pursuing this, this is because it ultimatley its the freeholders pro[perty and you should be chopping it about.

 

Its worth looking at this The Pre-Action Protocol for housing repairs, this is designed for situations like this and to narrow/help settle the points before pursuing action.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou

[Fringer]

Thanks for your responses. I've an appointment tomorrow with the local cab.

 

I also spoke to the company who were to do the damp course again and was told they were still going to do it but will do it when the complete the re pointing after I've had the windows replaced. This was something I was looking to do but not yet so I've told him that and now he's said it can be done this week.

 

I'll be back with more news when I get it.

 

Thanks again

[Fringer]

Further development.

 

I've had another plumber in and he has spoken to the freeholder directly and told him after thorough investigation the leak has DEFINITELY not been caused by anything in my flat but looks very much like when the bath upstairs has been emptied as the volume of water is a substantial amount. The freeholder admitted he had had to have a new bath put in, didn't say why but said his plumber found no leak in doing so. We think it's more than likely he found there was a problem with the old bath hence replacing it but if course he wouldn't admit to that.

 

When the plumber was here he also checked the outside of the property and found that the air vent which was put in my son's room in August to increase air circulation has actually been put on upside down outside meaning any rain water will run into the wall and not off of it.

I have emailed the freeholder photos of all the damage caused in my through lounge and the damage to my new bathroom from the bath upstairs plus the damp in my son's room due to the lack of damp course and have asked for him to get back to me with regard to paying for redecoration again. He hasn't even bothered to answer me yet again.

 

I am in the process of having my son's room re decorated again, the walls have been stripped, I have bought damp seal paint and foil backed plasterboard. My workman has painted the damp seal on and batoned the walls ready for the plasterboard to go up today in the hope it will prevent any further damp coming through, this alone has cost me £500. I really don't think it's fair that I should have to keep doing this year after year because him and his cowboys didn't do their job properly in the first place.

 

Can I reclaim any money from him?

[Fringer]

:mad2:

[andydd]

Yes..you can 'reclaim' money off him, but i doubt he will want to give it away.

 

The only option maybe suing him for damages in the county court or another possible option is to seek to offset/counterclaim any amount you claim he owes you against service charges he presumably charges you (be careful with this as non payment of service charges can have serious effects).

 

Other options are:-

 

The FTT (First Tier Tribunal) - Previously LVt - Leasehold valuation Tribunal, They deal with service charge disputes, now whilst strictly speaking they cant deal with damages claims, they can and have dealt with offsets/counterclaims.

 

Another possible option is a new law that comes into effect in a few days concerning management agents (and I presume, Freeholders who dont employ a MA but do the management work themselves), see here > http://www.dwf.co.uk/news-events/legal-updates/2014/09/redress-scheme-in-force-from-1-october-2014/

 

Its also worth visiting LEASE site for free advice > http://www.lease-advice.org/

 

Dont forget the Pre Action protocol I mentioned above if you are contemplating legal action.

[Fringer]

Thanks.

 

This is the response I got via email when asked for reimbursement:

 

"I’m not going to reimburse you any money because none of this is my fault.

 

I had a damp course put in place, the fact it may have been incorrectly put in is not my fault.

 

When you had problems I had them call round several times, I know they said it condensation (and Steve still believes this is the case) but again I’m not an expert with Damp so I just went with what they said. Steve is a BWPDA member and has been in his field for many years so I go with what he says. This is why I find it very strange that you only let him put in two air vents when he recommended three.

 

In regard to the leak, again, I had a plumber round to the upstairs flat (twice) and there was no leak, plus I had information to the contrary that it was coming from upstairs, Steve assured me that if there was water coming from upstairs the ceilings would also be affected, it would not start half way up the wall and I understand from Steve he showed you this and also informed you that the tiles had blown. I also understand he offered to speak and even meet up with your plumber to discuss this which never arose.

 

It’s not as if I have been neglectful as a freeholder I have had works done and got builders round when asked.

 

Steve has said that I won’t need a bell drip now the new DPC has been done but if you insist on one I can increase maintenance costs and once we have enough in there I will be happy to go 50-50 on it, I can’t be fairer that that, I charge you next to nothing regarding maintenance but as you are aware it is within my rights to create a ‘Sink’ fund for future costs."

 

I did check my lease where it clearly states he is responsible for all exterior walls and pipes, drains etc. It also states that HE is to insure the building not me, but that I am to pay a maintenance charge (which I have every month for 9 years) of which he is to use for repairs/maintenance and to send me a statement each year of what I've paid and how much has been used. It goes on to say if there is a shortfall in the year I am liable to make it up or if there hasn't been any works I am to get a refund.

This has never happened.

I pay £23 a month and have done since November 2005, the only maintenance that has been paid for was 2 years ago when the guttering was replaced at a charge of £400. By my calculations, that means he has at least £2000 of funds for this so called 'sink fund' yet he still insists on putting my charge up and will only go 50/50 on any further work!

 

In another email from the previous landlord he stated if I wanted new windows I would have to contribute, now this one is saying I have to fund them myself.

I really don't know if I'm on my head or my backside!

 

I've emailed him back after that email up there when ever he says it's not his fault, I've said it's the company he employs fault and therefore he should be able to claim from them, am I right in saying that?

[Conniff]

You will need to get a full survey done at your expense and if that proves in your favour, then you can move this forward. With just hearsay this will never get satisfied.

[Fringer]

It also says and I quote:

The landlord is to pay and discharge all rates (including water rates) taxes duties assessments charges impositions and outgoings assessed charged or imposed on the building and curtilage thereof as distinct from any assessment made in respect of any flat in the building.

 

Does that mean he is supposed to pay the water rates?

[Fringer]

In another clause it states the landlord is to employ all such surveyors builders architects engineers tradesmen as may be reasonably necessary or desirable for prope maintenance safety and administration of the building.

[Conniff]

But you aren't agreeing or believing what his contractors are saying which is why you should get one done at your expense and if yours proves your point, you can claim the cost back.

[Fringer]

I am only disagreeing because I have had 3 independent companies round who have all said the same thing yet his contractors insist they are all wrong and he is right.

This is a company who have told me for 9 years I have condensation problems without putting a damp tester on the walls, the 3 other companies did and all said there is rising damp. Photos were then shown to the boss by my landlord who stated it is in no way condensation!

The company put air vents in, they recommended 3, there was already 1 in place where they wanted to put 1 so I said not to worry, he told the landlord I refused the third, and 1 of them which was put in the worst room for damp, my son's bedroom, was put on upside down outside letting water run into the wall not off it.

This is just a small handful of things

[andydd]

The reply from the Fh appears rather unproffesional and made me giggle.

 

Lets deal with the major isue, posting bit from the lease about unrelated issues isnt helopful, you need to have a good read and fully understand the obligations of both the freehiolder and yourself, as LEASE or local CAB for help if you get stuck or post it up here and Ill have a look.

 

As ponted out it does look like that if you want some re-imbursemnet there will need to be a surbvey done to prove who is wrong or right, tittle tattle heasay eveidence wont be any good.

 

If you start court action, it can be that both sides agree on a single surveyor to keep costs down.

 

You really need to decide what to do ?

 

I'd recommend starting the Pre-Action Protocol I linked above to get the ball rolling, this wont automatically lead to court action but its a step in that direction.

[Fringer]

Can u add pics on here without adding them to a website?

[andydd]

You can attach scanned pdf's. There is a guide somewhere, perhaps one of the others can add some more info.

[andydd]

I strongly recommend the fisrt step in the pre action protocl, it provides templates letters to use (either if you are going it alone or usaing solicitor), it may spur your FH into action.

 

You should be careful about starting work yourself as its HIS property (although it is permissable for you to do this in certain circumstances).

[Fringer]

I have read through the pre action protocol.

I'll scan the lease tomorrow and upload it to here.

I really appreciate your help.

 

I did answer his email, I told him I'm not blaming him personally but the contractors and need his help to get some sort of reimbursement, also that we together should be trying to keep the building in a suitable condition, his investment, my home. He hasn't answered me.

[andydd]

Its worth pointing him to The RICS Code. This is a list of rules that freeholders should comply with. See here > http://www.leaseholdlife.info/reports/Rics_Code.pdf

[Fringer]

Quick question, are leaseholders classed as owners or tenants?

 

Lease states tenants. Freeholder is saying we are owners therefore are liable for any works, new windows etc.

[Fringer]

Finally sussed how to add a pdf.

 

 

Attached is my lease

[andydd]

I think your Freeholder is talking rubbish, he sounds clueless and IMO is open to leaseholders not paying because he doesnt know the law.

 

Leasehold law is complex and freeholders MUST demand service charges in accordance with the lease and the law, my freeholder is a major name and owns many properties but he has failed to keep up with the changes in law and Ive been able to run rings around him, and have now got away with not paying about 6 years worth of service charges, and hes had to refund me a few thousands

 

So you could be classed as both owner or tenant (in theory you rent the property for 99 or 199 or whatever the lease says). BUT thats irrelevant, the obligations to repair will be in the lease, generally FH's repair main building, insure, etc but it can vary and some obligations will be on either party.

 

Ill have a glance at your lease.

[andydd]

Ok..Read the lease.

 

So basically the landlord is responsible for everything EXCEPT the demised premises, everything in Clause 6 (1). (Although I note that if you havnt paid he doesnt have to).

 

YOU are resonsible for everything in the demised premises, which is described in The First Schedule.

 

Unfortuantely this case isnt simple as it involves damp in an area that could be described as the demised premises, but your FH appears to have admitted it was caused by a leak upstairs and therefore I think he is liable, despite ehat he says he cant just wash his hands if the damp proofing wasnt done properally.

[Fringer]

I've been advised to get a survey done and then take it from there. I'm worried its just throwing more good money after bad.

The FH is not admitting there was a leak upstairs that caused the damage to my through lounge, he said there was a small leak and in no way would that have caused the damage I have.

 

Basically, I'm screwed.