The flat I own shares its freehold with three other flat owners in the Victorian house. I recently undertook some very necessary communal repairs to stop my flat from being affected by damp. The other owners knew of the damp problems and the need for repair; they also knew that I was looking to find a builder.
I eventually found one and authorised them to do the repairs without discussion with the other owners, who were away or who did not want to make a decision before going away – although it was my flat which was being affected, not theirs.
Where does this leave me legally, in getting them to contribute to the cost of the communal repairs?
ANSWER
Thank you for contacting News on the Block with your enquiry. From the information you have provided it appears that you are both a leaseholder and a freeholder. The first port of call in any situation pertaining to remedial works is to look at the terms of the lease. The lease is the contract between you as a leaseholder and the freeholder (of which you own a share).
Assuming that the freehold is owned through a company, it maybe a question of considering the articles of the company to ascertain whether you have any authority to take this remedial action on behalf of the company (without the agreement of the other officers of the company). If there is no such authority, it would be difficult to argue that the action was taken in the capacity of a freeholder.
In the event you can establish that there was the adequate authority, we would then need to consider whether there should have been a consultation prior to the works being carried out.
From the information you provided, the works were undertaken in the absence of a statutory consultation. If a consultation does not take place, one would argue that each leaseholder’s respective contribution is capped at £250 (regardless of the expense incurred). Hence, the cap would be £750 from the three remaining leaseholders. I note your comments that the works were essential as the damp was causing damage to your property. To apply for an order of dispensation we would need to show that the remedial works undertaken were critical to warrant emergency repairs without recourse through the proper consultation channels.
The freeholder can potentially obtain an order for dispensation from consultation by applying to the First-tier Tribunal (Property Chamber). Of course, this would need to be done in accordance with the company’s decision making process through the articles (assuming it is a company).
This would appear an academic point as you would require the authority of the company to apply for an order of dispensation. I would suggest discussing the fact that remedial works had been undertaken with the co-owners (leaseholders) to establish whether they are willing to contribute towards the works undertaken.
In the event that they are unwilling to contribute, and the works cost over the £750 threshold that is recoverable (£250 per flat for failing to consult), you could seek to pursue a remedy in your capacity as a leaseholder against the freeholder. We would need to consider the provisions of the lease and the covenants in which the freeholder was in breach. A possible argument is that the freeholder was in breach of its repairing obligations to you as a leaseholder. However, we would need to show that the freeholder was on notice of the want of repair. We would need to show a paper trail to strengthen the argument that the freeholder was on notice of the need for the repair and that the works were of such a nature that they were carried out by way of self-help. As stated previously, it would be prudent to discuss with the other freeholders/leaseholders to ascertain whether they are prepared to contribute to the emergency remedial works that you had undertaken in their absence.
If the response is unfavourable you should consider the provisions of the lease and consult a solicitor to assess the prospects of successfully arguing that the freeholder was on notice of its repairing obligation yet breached the covenant by failing to undertake the remedial works required. You would need to establish that the repair works were urgent enough to necessitate the self-help action being taken. Careful consideration should also be given to whether such an action would be cost proportionate. Please consult a solicitor should you fail to reach an amicable resolution with your fellow co-owners.
Angela Alexiou, Solicitor at YVA Solicitors LLPAnge
