Can I make a stand by stop paying ground rent or service charge?

Can I make a stand by stop paying ground rent or service charge?

10:22 AM, 7th January 2022, About 3 weeks ago 12

Text Size

Dear all, We bought a leasehold ground floor flat (no basement below) in a mansion block a few months ago. During the conveyancing process, our Home Buyer report highlighted possible rising damp in the flat and suggested us engaging a damp specialist surveyor to carry out an independent Damp and Timber Decay survey, which we did.

The specialist surveyor found no rising damp nor timber decay. He reported that there might have been some penetration damps in the past due to downpipes/drain damage outside the flat, which had already been rectified. His report explained that the high moisture readings from the handheld moisture/conductivity meter were in fact due to the residue salt content left in the walls from previous penetration of water.

Separately, we had also informed the selling agent/vendors about the possible rising damp detected and sought information from them. We were provided some old documents relating to a DPC treatment over a decade ago and were informed that there had been no damp since. Based on the feedback from the vendors and the specialist damp report, we proceeded with exchange.

However, on one of our visit to the flat after our exchange of contract and before the completion, we discovered water ingress in a vacant room where the likely damp had been highlighted in the HomeBuyer report. We alerted the selling agent and enquired again about the history of the damp issue. The response we had was “there has never been leaks whatsoever”. We revisited the flat a couple of days later, the water had all gone and only slight dampness on the carpet, but the agent was adamant that the carpet wasn’t damp. Confusingly, he also mentioned that the vendor had been in the flat the day before to clear away the water.

We proceeded with the completion 10 days later as scheduled and commissioned another specialist damp survey. Below are a few examples of the defects listed in the second specialist’s report :

1. A rain water downpipe right outside the flat’s has come apart halfway from its bracket on the wall. The hopper above no longer feeds rain water from the roof into the downpipe and water from the hopper instead draining downwards over the outside surface of the downpipe and across the elevation. Downpipe need to be fixed properly and hoppers to be checked and unblocked.
2. Masonry pointings immediately above the cementitious skirting at external ground level are failing, some bricks have suffered surface erosion. significantly increase the risk of damp penetration to the interior of the flat on the ground floor.
3. All existing air bricks at the base of the walls outside the building and the air pathways between the vents and the sub floor voids are blocked /obstructed by soil, restricting ventilation of sub-floor voids on the interior of our flat. Air bricks and airways need to be checked and cleared as a matter of urgency.
4. All chimneys should be capped (in conservation area so none in use) to minimise water ingress.

The building is clearly not well maintained and our flat, being on the ground floor, seems to bear the brunt of the many defects found. The second specialist surveyor suggested that once all the listed defects have been rectified, our flat would be dried and have no more problem with damp and condensation. We have communicated the issues to freeholder’s managing agent immediately after completion, requesting them to rectify asap the defects of their responsibilities. The freeholder’s own surveyor visited our flat and confirmed there was damp in the property.

However, several months have gone by, little meaningful repair work has been done despite our numerous emails and phone calls. Only a minor work of ground level reduction outside our flat has been carried out a month ago, with a trench of 150mm wide and 150 deep being formed at the base of the external wall. It is back-filled with gravel to help drain water away. Unfortunately the trench is too narrow and shallow and gravel too small with a significant quantity of grit and sand was included in the free draining material (gravel) causing the material to be easily silt up and ceases to be free draining. So all defects are still outstanding, and our flat is still suffering from damp and condensation.

My questions are:

1. Can I make a stand by not paying ground rent or service charge until the freeholder / his managing agent rectify the defects, and we know for sure our flat is safe from possible water ingress / dampness ?
2. Do we have any recourse to the selling agent? Who we feel have not been honest with us?
3. Do we have any recourse to the first Damp specialist surveyor for having failed to spot all the defects of the building that causes the water ingress to our flat?
4. What options do we have to ensure freeholder fulfil his responsibilities and keep the roof, surface and underground drainage and sub-flooring ventilation in good repair and in working order?

So far, we have been dealing with freeholder’s managing agent, who is an administrator, doesn’t seem to understand the property management very well. Can we write to the freeholder direct? Surely, with all these risks of continued dampness and condensation to the foundation of the building, it is in freeholder’s interest to get it repaired.

Any advice and suggestions would be most gratefully received. Thank you all very much.

Best wishes to everyone for a very successful 2022 ahead.

Xiaolei



Comments

by Ian Narbeth

10:54 AM, 7th January 2022, About 3 weeks ago

Xiaolei, you raise a number of complex issues. You should in the first instance discuss these with the solicitor who acted on the purchase. Without a detailed review of documents and history of the matter, no-one can give you clear advice.

That said, withholding ground rent or service charge at this stage is almost certainly a mistake and will immediately cause problems for you.

by BernieWales

12:07 PM, 7th January 2022, About 3 weeks ago

To answer your questions first, Xiaolei ...

1. No! Non-payment of ground rent and/or service charge will be a breach of the terms of your lease. Two wrongs do not make a right. You should ensure you do what you are required to do - whilst trying to ensure the Landlord/freeholder does what he/she/it should do.

2. No. The selling agent was not working for you - they were working for the seller. Whilst I am sure they did not tell an untruth in writing, they may merely have been passing on untruths given to them. And in any event, whatever they said (as opposed to put in writing) should not have been taken as fact. Visit their offices and you'll probably see a notice on the wall which (in simple terms) says "don't believe anything we say".

3. If you paid for the first survey then that surveyor had a contract with you - and thus there may be legal recourse. However, you'll need to produce documentary evidence of precisely what he was requested to do - and then provide evidence that he did not do what he was told to do. That, I suspect, won't be possible to the satisfaction of the Court ... and will probably be good money thrown after bad. Move on.

4. As usual, the starting point here is READ THE BL**DY LEASE. Find the clauses which require the Landlord to maintain the building and identify precisely what the Landlord should have done which (you allege) the Landlord has not done. Check also the definition of the Building to ensure the defective items are actually within the areas/structures to be maintained. Take photographs of each of the defects ... now ... and periodically in the future, so you have documented evidence of what is in disrepair now ... and at all points in the future. If repairs are carried out, take photos of the completed works ... in case those works later prove to be defective or ineffective.
Having collated all your evidence, write a formal but polite letter to the Landlord, with a copy to the managing agent. The letter should tell the full story from scratch and should itemise each defect, which clause of the lease requires the Landlord to repair/remedy that defect, and photos of that defect ... one by one through the whole list. At the end of that story, request politely that the Landlord effects repairs "within a reasonable time" in each case; e.g. a rainwater pipe could be removed and replaced within 28 days (if no Grade II listing applies). The reasonable period for some items may be longer than others; e.g. chimney works will need scaffolding and the costs will probably be above the Section 20 consultation limit, so a reasonable period will be 5 or 6 months.

Then sit back and wait. But whilst you're waiting - do all the things you should have done before you bought. Obtain and scrutinise the following:
> the current service charge budget
> the past three years service charge accounts
> the major works schedule, past and future, together with details and calculations for any reserve funds and/or sinking funds
> past section 20 notices, estimates and related documentation
> the latest Fire, Health & Safety Risk Assessment ... and all documents which flow therefrom.
AND you should speak with other leaseholders to get the full picture of the property management over recent years: pro-active/responsive ... slow/fast ... cheap/cost-effective ... promises/action ... etc.
By the time you've got through that lot you'll have a better idea of the situation you've blindly walked into.

If the Landlord and managing agent take action and that action proves to be effective and of reasonable cost ... good.

If the Landlord and managing agent do not take action and do not remedy all the defects ... you should then make an Application to the First-tier Tribunal (Property Chamber) so that the Landlord can, hopefully, be forced into doing what should be done. Once that application has been submitted, you'll then be in a position to withhold service charge payments until such time as the Determination of the Tribunal is published ... and then you abide by whatever they decided.

I hope that helps.

Google may name if you need practical help with the process.

Good luck!

by darron rathbone

14:18 PM, 7th January 2022, About 3 weeks ago

As the owner of a ground floor flat that suffers condensation problems, it’s worth noting that flats above will always be warmer than ground floor flats as heat rises. Consequently, wall surface temperatures around external windows will be low and prone to mould growth if excess water in the air condenses on these cooler surfaces. Dehumidifiers can be fitted to reduce the problem. Also heating the flat well and the use of ‘trickle’ vents on windows will help. Any mould that appears needs to be sprayed with a fungicide immediately to prevent further growth.

by Xiaolei Men

14:29 PM, 7th January 2022, About 3 weeks ago

@ Ian Narbeth
Thank you for your response.
I will check with our solicitor and see whether he could help us in this. He is mostly a property conveyancing solicitor.

We will carry on paying the ground rent and the service charge.

Thank you again.
Xiaolei

by Judith Wordsworth

14:48 PM, 7th January 2022, About 3 weeks ago

No.1 Do not stop paying ground rent and service charges. You will be in breach of your lease and all that entails.
No.2 selling agents have to be honest with prospective purchasers so possibly you could make a claim against their professional indemnity insurance as blatantly lied to you as said God vendor had been there to remove the evidence. Did you take photos? Will be hard to win though I would have thought.
No 3 Possibly a claim against the first surveyor, his professional indemnity insurance, but read the small print in his report as most have wordage to wriggle out of any mistakes or errors. But if your second surveyor is prepared to refute the first report then may stand a chance.
No 4 As Bernie Wales has superbly put.
If you get, and might be likely, mould growth make sure you ventilate the property adequately. You may need to remove the damaged plaster. When replastering add mould inhibiter and also add to the paint/wallpaper paste.

by Xiaolei Men

17:15 PM, 7th January 2022, About 3 weeks ago

@Bernie Wales

Thank you for you detailed and comprehensive response and your kind words - all is noted and greatly appreciated.

In the last five months, we have sent numerous emails to freeholder's managing agent with list of defects and pictures. As a new owner, we have been discovering more and more defects as time goes by so our list sent to the property manager has become increasingly longer.

We thought we were thorough but nowhere near as thorough and systematic as you suggested, e.g. we need to read the lease, identify precisely which clauses the freeholder has failed to deliver as well as update our photos periodically, to name but a few.

We will definitely follow the steps you have outlined and will get in touch if we require further specific assistance in any of the areas concerned down the road.

Thank you again and our best wishes,

Xiaolei

by Xiaolei Men

17:53 PM, 7th January 2022, About 3 weeks ago

@Judith Wordsworth

Thank you so much for your advice.

Yes, I did take pictures of the water ingress in the room. I actually taped the conversation I had with the selling agent when I last spoke to him about the damp after exchange - I did tell him I was taping as I needed to keep a record of exactly what he said / meant (so he couldn't deny later on and change his story) - he had had a tendency to give conflicting information in the past. So I have caught him on tape saying "I don't care!" when reminded him of the professional code of conduct re being honest with information provided.

I have been in two minds regarding whether or not to pursue the estate agent / first surveyor; I hate to think these irresponsible practitioners are going about their businesses as usual, but I am not confident I have the detailed knowledge and stamina to see through the process single-handedly.

I think I will heed Bernie's advice and move on. After all, to get the defects rectified by the freeholder asap is the top priority as we can't redecorate until we know for sure the defects that causing our problem have been rectified.

Thank you again and all best wishes,

Xiaolei

by BernieWales

18:13 PM, 7th January 2022, About 3 weeks ago

Reply to the comment left by Xiaolei Men at 07/01/2022 - 17:15
The more business-like and thorough you are - and the more you quote the specific clauses of the lease (and any relevant Landlord & Tenant law) the more the property manager and Landlord should take notice and take action.
AND the bigger the hole they dig for themselves if they don't take action ... which all adds to your case when you go before the FTT.

by Christopher Holden

20:17 PM, 7th January 2022, About 3 weeks ago

Some very good advice, as LL that owns several flats that are in blocks of 4, I have to deal with individuals and agents, by far the agents, to be clear they are clueless estate agents, after many emails and phone calls I have had to action work I am not liable for, I document the work and have sent them a bill, for instance the down pipe issue will cause massive issues but is very simple to resolve, I would arrange the repair as soon as possible, if they complain I would mention they are liable for damage / damp.
One estate agent paid the bill, thanked me and mentioned my bill was at least half they would normally pay, the other agent refused, contacted the owner who did pay, thanked me and changed agent.
Not best practice I am aware but sometimes protecting one's own property is key.
On a side note, I bought a property well below market value due to "damp" had anyone with an eye viewed they would have noticed the leaking gutter, downpipe missing the hopper, bath leak and the last owners were terrible dog owners, poor dog was not taken out enough, 2 days work, no smell no damp.
Good luck resolving 👍

by Xiaolei Men

1:04 AM, 11th January 2022, About 2 weeks ago

@Christopher Holden

Thank you very much for sharing your experience which is helpful.

I have now "READ THE BL**DY LEASE." which contains a clause to say lessee " not at any time to interfere with the external decorations or painting of the premises or of any other part of the building" I take it that the freeholder won't like the downpipe to be interfered either.

Although very tempting, we will first send a formal letter to the freeholder copied to his managing agent, as suggested by Bernie Wales, before we take the repairs into our own hands which might be the most straightforward way for everyone.

Thanks again and best wishes,
Xiaolei

1 2

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

BECOME A MEMBER