QUESTION
I own my flat and have a share of the freehold. My neighbour upstairs had a blocked sink recently and it leaked into my property causing damage. The board members have insisted that I use a rogue builder who do not speak English and whose qualifications have not been provided. They have put pressure on me to use this builder. I didn't accept their conditions so they have now refused to help. They are not willing to provide my details to the owner above who has tenants in the flat. I now have damage in my flat and have been extremely stressed. I feel the board are not acting appropriately. I have provided them with two further quotes that i gathered from registered and reputable businesses and they have refused to fund them insisting on usage of their builder.
Can I report this misconduct to someone or is there anything else that I can do?
ANSWER
In response to the enquiry made, Kirsten Blower, Associate in the JB Leitch technical and complex department offers some detailed and practical advice:
This is an unfortunate situation, but an option may be to write to the neighbour in question, at the flat. Usually sub-tenants will advise their landlord of post received for them at the property, so the correspondence could be passed along. The correspondence could be an informal letter advising of the situation or, if a more direct approach is preferred, a formal letter of claim advising that if the damage is not made good or payment is not made in respect of the cost of remedial works, court proceedings may be issued. Further still, and if feasible, could contact not be made in person with the tenants occupying the flat, to see whether they would be able to directly provide their landlord’s details?
As a member of the board, the reader may have access to the neighbour’s contact information in any event and perhaps the neighbour is also a board member? - so the issue could be brought to their attention by way of a board meeting.
It isn’t known whether the members in question include the chair. If not, in lieu of getting anywhere with contacting the neighbour concerned, the chair could be apprised of the situation to gain their point of view and perspective.
If the dispute remains unresolved, a board meeting could be called to discuss the matter formally (if it hasn’t been already) and a vote could be held concerning instruction of a preferred contractor. The company’s Articles of Association should also be reviewed to see whether they afford any relevant assistance or clarification – notes should be taken of what the Articles provide for in terms of voting rights and achieving a quorum, and, in particular, what rights and powers the company actually has; to use a particular builder may (is likely to) be something that the members cannot actually insist upon.
Aside from company law aspects, a leaseholder is entitled to quiet enjoyment of their property and it would be prudent to review the terms of the lease. There may be provision in there for the freeholder landlord taking action against the neighbour in question upon request, owing to the nuisance and damage caused (such provisions often entailing an indemnity to be given to the landlord regards any costs incurred however, so caution should be exercised accordingly).
The bottom line though, over and above the foregoing, is on what basis is the board involved with the repairs anyway i.e. why is the reader seeking their agreement as to which contractor to use? As a leaseholder they have a right to undertake repairs to their demised property and in lieu of any pertinent agreement with the neighbour on the point, should not be restricted to using only the board’s approved builder – it is not a freeholder issue as the damage is to the reader’s demise, not the common parts.
In the event works are undertaken via a contractor of the reader’s choosing, in order to recover the cost of those works, as above, correspondence could be sent to the neighbour’s flat demanding payment, with a view to proceedings being issued in the event payment is not made
As an additional recommendation, the reader should keep a contemporaneous log of the damage sustained, costs incurred and correspondence sent and received in the matter. Any invoices and quotes should be kept and for the purpose of evidencing the causal link between incident and effect. The reader should also consider obtaining a report, if they haven’t already, confirming that the damage sustained to their flat was caused by the leak from their neighbour’s flat as alleged”.
Kirsten Blower, Associate at JB Leitch
