Building Control Steps In, Agents Start Strike-Off Process and HHSRS
I had to write to the council again (in sheer frustration and panic) because a heavy storm had led to water entering our electrical supply through the roof, which in turn blew out our ring mains!
I told them we had already sought legal advice (spending several hundred pounds in doing so) only to be told that we could either get ourselves in debt to the tune of around £20,000 to go to court, (with no guarantee of a result in our favour, which to me beggared belief) or take the time-consuming legislative routes available, which had already been well and truly ruled out (for reasons which will become clear later).
Building Control Attend
The leader of our council had said in earlier correspondence that he would see if the council’s Legal Team would refer the issues of our block to the Building Control Team and ask if there was anything they could do to assist.
This led to them attending the development and carrying out a basic structural survey. We received a letter on their findings which stated the following:
- Several cracks on the balustrading were a mix of some which had developed over time and others which were quite recent. None of them were in a serious enough condition to warrant immediate actions but Building Control were concerned enough to state they would write to the managing agents bringing the problems to their attention;
- Although a detailed structural or conditions survey had not been carried out, the building was found to be generally structurally sound, notwithstanding the problems of the walkway parapets;
- Whilst there were long-standing problems with deteriorating roof coverings, damp penetration through the roof decking would inevitably lead to a weakening of the roof structure;
- The rainwater goods (gutters and downpipes) were defective and in poor condition which in turn allowed the external walls in places to become saturated, no doubt encouraging damp inside several of the flats;
- Some of the walkway soffits (the underside of an architectural structure such as an arch, a balcony, or overhanging eaves) were also deteriorating rapidly, with fractures and holes appearing;
- The presence of asbestos sheeting should also be surveyed and checked;
- The low ground level retaining wall at the side of the property, (which also forms the boundary wall to a common area walkway) had a degree of lean which could rapidly fail if allowed to reach its stability threshold.
Notice Sent To Managing Agents
Good to their word, Building Control sent a notice to the (so-called)managing agents, (under Part 6 (miscellaneous) (Part 4) of the London Local Authorities Act 2000 and the London Building Acts (Amended Act) 1939 Part vii (Dangerous and Defective Structures) drawing their attention to the defects noted at the recent inspection.
The notice went on to state that urgent action was required and the reason they have been brought to the attention of the managing parties by Building Control was so they were fully aware of the extent of the problems and could take steps to remedy them. It was also in order to avoid the need for the Council to take action under dangerous structure proceedings.
The notice finished by requesting a reply with the next 14 days.
NOTIFICATION OF AGENT’S STRIKE-OFF APPEARS IN LONDON GAZETTE!
Now whether this had anything to do with the constant attention of the council I don’t know (although I suspect it did) but the first notification of the strike-off of our managing agent by Companies House appeared in the London Gazette. Strike off date from the register was set to be in April. I lodged an objection to this (for a number of reasons) and also sent a number of documents showing the business activities of our freeholder and his family over a number of years. I was hoping that their Compliance Department would be interested in looking into them.
I was however advised that Companies House are only able to write to ‘live’ companies on the register in respect of overdue accounts and annual returns, or alleged breaches of the Companies Act. Additionally, whilst they have no investigative powers they are an Executive Agency of the Department of Trade and Industry which has a Company Investigations Branch (CIB) with the responsibility for conducting investigations into companies using the statutory powers of enquiry contained in the Companies Act 1985.
On contacting the CBI I was advised that when they receive a complaint it goes through a vetting process to decide whether it merits an investigation. This means they will consider my complaint, take into account any other information they have, and decide whether or not to carry out a formal investigation.
What Use Were They? None!
In correspondence to me they highlighted the importance of confidentiality which basically meant that they couldn’t enter into any public debate on the merits of complaints so they would not confirm or deny that an investigation into a particular company is taking or has taken place and they would not tell me what the outcome of the complaint was!
So again I wrote to my local MP and the leader of the council because by now I was getting really desperate! There had been earlier reference made to the rights of leaseholders under legislation such as that of collective enfranchisement (group action to purchase the freehold) but we couldn’t meet the criteria due to the lack of interest and the difficulty of tracing leaseholders who were subletting because they put the renting address on the Land Registry. We couldn’t take the fault-based LVT route (now the FTT) to replace management because we couldn’t afford the legal support, so often recommended. This was compounded by the fact that the process required an agent to be found beforehand and although I had previously approached three independent property company specialising in the management of blocks of flats, they weren’t interested, all for the following reasons:
- Not only was there a lack of support and interest but that the building had been allowed to fall into such a state of disrepair that a large amount of monies would be required up front to start works;
- There was also the requirement to obtain buildings insurance (which might require specialist cover) and the potential difficulty in tracing owners and getting them to start paying service charges.
We also couldn’t meet the criteria for the ‘no fault’ process of replacing managing agents under the Right to Manage (setting up a company to allow the replacement of management with an agent of own choosing) and those lessees we did find also showed a distinct lack of interest. This was even though as a no-fault process, RTM was far less expensive than any other option. Not only that there not enough owner-occupiers to establish a Recognised Tenants Association, (the word ‘recognised’ meaning that the freeholder had to recognise it)! As if that weren’t bad enough, whilst the Housing Ombudsman (in 2006) stated that they could deal with complaints if they were about the landlord and tenant relationship (to include tenant, leaseholders, licensees and others who received services from landlords who belong to their schemes) our relationship with our agent was not one that fell into any of those categories!
So all that redress and for a considerable amount of time, we couldn’t use any of it so where were we supposed to go from here when we had spent nearly 2 years trying to get our situation resolved?
HOUSING HEALTH AND SAFETY RATINGS SYSTEM
The Housing Health and Safety Ratings System (HHSRS) was introduced under Part 1 of the Housing Act 2004 and is an ‘evidence-based risk assessment’ approach to housing. It is actively targeted at the PRS because of the number of rental properties that would be judged unacceptable under it’s criteria. Whilst a landlord who rents out flats is bound by the covenants contained within the lease he can also be bound by any findings under HHSRS.
The process requires inspectors to examine properties for health and safety defects that include fire risk, damp, overcrowding, poor lighting, and pests. Once the defects are identified they consider the likely harm that could happen as a result of such findings and use a scoring system to determine the seriousness of such defects of which there are 29.
I’d already had one request for such an assessment to be carried out on our development turned down even though we had no lighting on stairwells, there was water entering our electrics, pouring from guttering and leaking into other flats (including those of my neighbours property). We also had unsecured water tanks on a defective roof!
So, I did a bit more digging and established that whilst HHSRS is not actively targeted at owner occupiers of houses it does applies to ALL residential properties which includes blocks of flats and their common areas. This is because Part 1, Chapter 1 s4 of the Act states that ”if an official complaint about the condition of any residential premises is made to the proper officer of the authority’ i.e.a complaint received by writing by a ‘justice of the peace having jurisdiction in any part of the district’,’ or the ‘parish or community council for a parish or community within the district’ and if the circumstances complained of indicate that any Category 1 or 2 hazard may exist on those premises or an area in the district should be dealt with as a clearance area, the proper officer must inspect the premises or area’
So, positive that we would be found to have Cat 1 and Cat 2 hazards, I asked again. This time I was successful and whilst I personally didn’t know a JP, I asked if my local MP would suffice as he was happy to refer my request. The leader of the council took his own legal advice and said his own referral would be acceptable.
Two visits under the legislation yielded 2 Category A hazards (the most severe) and a number of Cat B’s and C’s.
The elements covered were:
- Damp and mould growth from a defective flat roof, where sections of asphalt have been replaced and were cracked and uneven and holding pools of stagnant water. There was more pooling evidenced across the rest of the roof, the up stand to recently replaced asphalt was correctly installed and allowing water penetration along the parapet wall. The water supply for washing, cleaning and sanitation purposes was contained in exposed tanks and dilapidated wood was allowing the entry of foreign objects and organisms. There was also inadequate protection against contamination of water in header tanks.
- Entry by intruders;
- Personal hygiene/sanitation and drainage;
- Water supply;
- Falls associated with stairs and steps;
- Structural collapse/falling elements.
SO WHAT WERE THEY GOING TO DO?
As we had been found to have a number of serious hazards within bands A-C we understood that the local authority would be under a duty to take the relevant course of action. They would consider the risk from any hazard(s) that might affect the potential occupant most at risk and come up with practical solutions.
Additionally in deciding the most appropriate enforcement method they would also consider matters such as cost of the works necessary to deal with the hazards. Actions they could take would be:
1: Serve an Improvement Notice?
This is a possible course of action for dealing with category 1 or 2 hazards and must at the very least remove any category 1’s. Work will not need to start any sooner than 28 days from when the notice is served. It may, if necessary, be suspended until an agreed date or event such as the current occupant moving out of the property. It can cover more than one hazard, and as a result may need different completion times. Once the necessary work has been done to their satisfaction, the authority must revoke the notice. Failure to carry out the required works in the Improvement Notice within the specified time frame is a criminal offence.
2: Make a Prohibition Order?
The local authority will take a number of factors into account before serving a prohibition order, including:
- Listed or protected buildings;
- Neighbouring buildings;
- Potential alternative uses of the premises;
- Existence of a conservation or renewal area;
- The effect of complete prohibition on the well being of the local community and the appearance of the locality;
- How easy it is to re-house displaced occupants.
Once such factors have been considered they would then consider what action to take such as prohibiting the use of part (or all) of the premises for various specified reasons such as where:
- The conditions are a serious threat to health and/or safety but practical repairs are not possible because of cost or other reasons;
- Limiting the maximum number of people who occupy the dwelling because of defects or where the facilities, e.g. washing, sanitary etc., are unsatisfactory for the number of people who live there; and
- Prohibiting the use of a dwelling to a particular vulnerable group (until such time as improvements have been made).
However, despite both the findings and our expectations, the Council did not take any further action because by that time, the managing agents had succeeded in getting themselves struck off Companies House Register simply by failing to file! Not only that, the family solicitor of the deceased freeholder failed to advise as to whom the freehold had been willed to. As a result there was no-one to serve any more notices on as per s246(6) of the Housing Act 2004 and the council could not carry out works in default under Part 2 of Schedule 2 (procedure and appeals relating to Prohibition Orders) because there was no one to recover the money from.
COUNCIL LEADER ACCEPTS LEGISLATION FAILED US
My MP remained concerned enough to personally write to the Chief Environmental Health Officer in which he said that our problems were complicated even further by the fact that 18 our of 22 flats are sublet. This meant that most of the occupiers have an relatively transitory and so are unlikely to be prepared to join in any formal actions. He also said that if the managing parties were not prepared to carry out the work when they had a notice served on them then the work should be carried out and they should be forced to pay the bills.
The council leader also accepted that the legislative process had failed us. He was therefore happy to raise the issues on my behalf with his parliamentary party colleagues so that the matter could be brought to the attention of the appropriate people in government. He also said a change in the current law may be the only solution!
In the meantime, whilst the building continued to deteriorate and I continued my research, very high winds sent the top of an unsecured water tank into my next door neighbour’s garden! I was horrified at its size and the potential damage to both life and property it could have caused. We were however fortunate(?) that the very large satellite dish rolling round on the roof didn’t go overboard too. Even though my partner had a slipped disk he went onto the roof and moved it into a safer position, protected from the wind. He also found another water tank serving another flat completely exposed!
Just when we despaired of ever getting any help, it finally came from a totally unexpected source. To find out what, read here!