Absent Freeholder and Leaking Flats
My partner had moved into his flat in Wellington Mansions in East London in 1989 but by the time I moved in toward the end of 2003, the building had suffered considerable neglect. There was water ingress from the roof down our load-bearing wall in the kitchen and when I started looking to find out how to fix things, I established that we had what is termed an ‘absent freeholder’. Reasons are varied but include death, bankruptcy, being criminals (convicted or not) or they have simply disappeared and do not want to be found. Ours turned out to be a convicted criminal, serving time for Customs and Excise fraud.
Whilst flats can be sold when the freeholder is absent, (and this is where the use of indemnity insurance comes in) key covenants on the part of the freeholder cannot be met such as service charge and ground rent collection, common area maintenance and repairs and the placing of block buildings insurance. This will in turn lead to significant disrepair and flats that can’t be mortgaged, not to mention issues with the title! So, this is what I was faced with!
I did find out however that there were some agents (his daughters) who were still contactable so I decided to see how co-operative they might be. After a number of e-mails sent to various addresses and some telephone calls, someone eventually came to visit us in the first quarter of 2004.
Note: Further research revealed that both the freeholder and his daughters were responsible for opening and closing a large number of other businesses over a number of years, 15 of which were dissolved. There were more but I ran out of (my) money researching them. Additionally they had left a large number of (mainly) unsatisfied County Court Judgements in their wake.
We however were given the impression that if we paid some service charge arrears then we would at least get our part of the roof fixed. However, the demands that had been received up to that meeting had been very sporadic over the previous years so I wasn’t really sure exactly what was owed. It was at this point that my research into the leasehold sector truly began. I established roughly how much we were liable to pay under the 18-month rule and we started to make small regular payments. However despite the assurances that the work on our portion of the roof would start, we received no receipts and no work was carried out! Even when we reduced payments for a short time in an attempt to get some communication, they didn’t even ask why!
By this time we also had water leaking into the living room, primarily over the front door. A number of saucepans collecting the water was not quite the look for our flat we actually wanted!
We then decided to seek the advice of a solicitor for which we paid for out of our own pocket. After being advised how potentially expensive it would be to sue for breach of contract, there was also no guarantee we would be successful!
COMMUNITY PROTECTION OFFICER
In the beginning of 2005 and in desperation, I approached the council for help and we were assigned a Community Protection Officer. She carried out a thorough inspection of the roof, writing reports and taking photographs. This led to her serving a notice on the agents under s190 (1a) of the Housing Act 1985 (notice to execute repairs to a part of a building containing a flat in a state of disrepair but not unfit).
The notice said that our flat was in such a state of disrepair, the condition of the part of the building outside our flat, (comprising of the water storage tank above the flat, the roof area below the water storage tank and the roof area above the front door), was such as to interfere materially with the personal comfort of the persons occupying the flat, i.e. us. As the persons having direct control of the part of the building concerned, the agents were required under s180 (2) of the Housing Act 1985 to carry out the works specified in the Schedule to the notice and to complete them within 3 months.
That, and also subsequent notices fell on deaf ears because due to a family rift they said the block was nothing to do with them. Ultimately the whole thing went on for about 10 months until we were told we were not entitled to any help as we were long leaseholders! This made me furious as we had told them right from the outset that we were!
This was when I decided to contact my (then) local Labour MP to see if he could help.
BARONESS ANDREWS REPLIES
After writing to the Office of the Deputy Prime Minster about our situation, our MP received a reply from Baroness Andrews who said that it was precisely because of similar situations to ours that the Government felt it was necessary to introduce a number of wide-ranging provisions to strengthen the rights of leaseholders through the Commonhold and Leasehold Reform Act 2002. She went on to explain what those measures were and what the terms of our lease should explain. She also said that if freeholders fail to turn up to court this should not prevent a repair order being issued.
Baroness Andrews then went on to say that council powers were strengthened by the Housing Act 1988 which can require a landlord to start work on a certain date and also stipulate a completion date. A landlord could also be taken to court for failing to comply with a repair notice and it’s not just council tenants who can get the council to take such actions.
She finished by saying that we may wish to make a complaint to the council and, if dissatisfied with the response, we can then escalate our case to the Housing Ombudsman.
A response also came from the Council’s Housing Standards but that only confirmed the initial complaint I made in early 2005, what steps were carried out, and that I had been informed that nothing further could be done. As far as they were concerned, the case was closed!
I still felt that our situation hadn’t been properly addressed under the circumstances so I again wrote to the Council Leader and copied in Baroness Andrews asking why, when she had stated that the powers of the Council were increased under the Housing Act 1988 and we didn’t need to be a council tenant for the Council to take action, why was our situation not being pursued?
I also drew attention to the ‘prejudical to health’ element of the initial notices sent to the managing agents by the Community Protection Officer and said that surely having no lights on the stairwell would come under the Council’s remit especially as a resident had sustained two broken ankles as a result!
I finished by asking why there was no available legislation to impose immediate penalties on the managing parties.
I received no further reply so, in attempt to get the other lessees to assist, we returned to our solicitor who sent a letter to each of them (at least those we had alternative addresses for) of our concerns that the lease obligations had not been fulfilled by the landlord and his managing agents. I had also established that the block buildings insurance had lapsed and if there should be a fire there would be no money to repair or reinstate the building, affecting all their interests. They were all asked to take the matter up with their own lenders as soon as possible.
The letter went on to state that there was quite clearly an urgent need to repair various parts of the building and three points were highlighted:
- The roof is in need of urgent repair and despite repeated requests to the managing agents no action has been taken. Whilst it may not immediately affect you, if not repaired it will harm the building as a whole during the course of time;
- The water tanks need replacing;
- There is a crack in the wall of the building which is widening and may cause that wall to fall over, possibly injuring someone or at least damaging the building. Even if it does not fall over it needs to be repaired as soon as possible.
The letter finished by advising that whilst the local authority was looking into these matters this takes time.
Unfortunately only one leaseholder responded!
A heavy storm then led to us asking for further assistance and building control stepped in. Their actions can be read here.