Freehold Management Company not playing fair

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Freehold Management Company not playing farLandlord Ken Tinkler has written in as he thinks his Freehold Management Company are treating him unfairly.

What do you think?

Have you ever been in a similar position and what would your advice be to Ken?

Please see Ken’s email to Mark Alexander and Property118 readers below:-

“Dear Mark

I have an apartment on the 11th floor of a purpose built modern block of flats, which is professionally managed. Just before Christmas a pipe burst in the corridor immediately above my apartment and caused extensive damage and a great deal of inconvenience to the tenants. Buildings insurance covered the cost of replacing the laminated flooring and contents insurance covered the cost of replacing the carpets and other things. I had a £250 excess on my contents insurance, which I am trying to recover from the managing agents, but they are refusing to pay. They say that although they were responsible for the pipe that burst, they were not negligent and it was just one of those things that happens.

 Similarly I have repaid my tenants rent for 1 week when they felt they had to move out, and also given them a further weeks refund for the significant inconvenience they suffered for a month over the Christmas period. I think the managing agents should pay this but they are refusing,  as they say the tenants did not have to move out. I find this very difficult to accept bearing in mind that there was no floor covering and de-humidifiers were going 24/7 for over a week.

Surely neither I, as landlord, or my tenants should have to suffer for something that was neither our fault, and over which we had no control.

 

If you, or any of your readers, have any guidance I would be very grateful.

Thanks

Ken Tinkler”

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Comments

  • David Giles - Embarq.co.uk says:

    I’m pretty sure what the answer is but my knowledge is surpassed by a long way in this area by Mr Bernie Wales . Bernie will know the exact answer to your question as he specialises in this area. Good luck! Regards, David – embarq.co.uk


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  • Hi David, thank you for commenting. Perhaps you could ask David to post a comment here for the benefit of the whole community. Your comment above was marked as spam by our systems but I have allowed it to go through as the intentions seem honourable. You will find that it is always better to post detail wherever possible to demonstrate knowledge of the sector to the community as opposed to merely placing a sales link which many readers will be suspicious of.


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  • 1. Bernie would be an excellent port of call as would the leasehold advisory service.

    2. Why should the agents pay? They have done nothing wrong. They are acting as agents to the management company.

    3. Why do you have such a large excess? Its is your insurance policy.

    4. You may be able to claim against the biuldings policy for loss of rent but that then comes down to the loss adjuster – not the agent.

    5. You could ask the management company for an ex-gratia payment to cover your loss/inconvenience but that would then open up the company to future possibly larger claims.

    To conclude, whilst I symapthise with your situation I do not think the management company is acting unreasonably. I think you may be expecting more than you are entitled to.


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  • HI, the comment from Antony is absolutely correct. The block managing agents have absolutely no responsibility in this matter other than to have ensured that the problem within the communal areas was dealt with as soon as reasonably possible after the problem occurred. The buildings’ insurance would cover any damage to the communal areas but not the cost of the actual repair to the pipe and will cover the cost of any damage to the fabric of the flat which is part of the building. Any lessee wishing to make a claim on their contents’ insurance would be aware of the terms of that insurance and that they would be liable for any excess

    Two things, the managing agent is unlikely to make a ex gratia contribution to you and there is also no reason why your co-lessees should do so via their service charges. Also many buildings’ insurance policies define their loss of rent clause as loss of ground rent to the landlord reserving any alternative accommodation benefit to owner occupiers in the event of a flat becoming uninhabitable – not inconvenient. In my experience many insurers expect buy to let landlords to have their own insurance to cover any claims by tenants.
    Sorry this is probably not the answer you were looking for


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  • Ken says:

    Thanks for your opinion. I should have been clearer, it is the managing company that I am asking to pay, because they are the ones that are responsible for the pipe. I’m just struggling to understand why I should suffer financially for damage to my property arising from something controlled by somebody else. This would be the case irrespective of the size of my excess.

    I do appreciate the alternative view, as it will help me in the way I pursue any claim.

    Thanks
    Ken


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  • ken says:

    You’re right. Not what I wanted to hear, but best to know where I stand. Thanks


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  • their responsibility for pipes is unlikely to extend to ensuring they never leak. your only chance is to prove that they have a tortious ‘strict liability’ under the dictum in the landmark case of rylands v fletcher. when i was loss adjusting this argument didnt cut much sway but that was a long time ago.


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  • The funds available to the managing agents come from all the leaseholders in the block. Why should the other leaseholders subsidise you and your tenants?


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  • Sorry Ken Tinkler but the rule in Rylands v Fletcher only applies if there was a non-natural use of the property above, e.g. storing water in bulk. If your property is in Scotland (as opposed to England and Wales) Rylands does not apply so you would be in an even weaker position.
    Therefore, unless you can prove that the agents were negligent (or that someone else, e.g. a contractor caused the leak) the financial loss will lie where it falls.
    In the commercial context it is common for landlords to take out loss of rent insurance which pays out if the property becomes unusable as a result of damage by an insured risk. The commercial tenant usually has to pay for it in addition to his rent. If the property does become unusable, the rent is suspended whilst the damage is repaired and the property made usable again. It is possible to take out LoR insurance for residential properties but you need to check the policy terms or you could find that you cannot recover if you have made a goodwill gesture of letting the tenant off rent if the insurers think the property was in fact usable. On the facts you describe I would have expected insurers to pay up.
    Obviously in the resi context the landlord will bear the cost of the LoR insurance so you need to balance the cost of premiums against the odd occasion when there is a problem.


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  • ken says:

    You really do live and learn. “Fairness” (hardly a legal concept) says to me that I should not suffer financially for damage caused by something for which I am not responsible but it doesn’t look like I’m going to be successful.
    I don’t think I’m asking the other leaseholders to subsidise my poor commercial judgement. I accept that they (and I) will end up paying a higher service charge if I am successful in obtaining anything from the management company, but they are the ones who have received the benefit of the water passing through the pipe – and if the pipe fails it seems reasonable to me that they should bear part of the financial consequences, rather than leave it to me.
    I guess I thought I would be successful, certainly in recovering my excess, because that is what happens in motor insurance claims. Although I accept that motor insurance claim excesses are only recovered from guilty party insurers and what I cannot prove is that the management company was guilty/negligent – although i might try, because I don’t see why the pipe should simply fail..
    Thank you for taking the time to explain things to me.


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