Right to enter an empty leasehold flat in emergency?

Right to enter an empty leasehold flat in emergency?

11:08 AM, 23rd May 2022, About a month ago 6

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We are a newly formed right to manage company and the remedial works to the block due to the dreadful works by the developer have been huge. We have to recommission the heating system due to the wrong pressure and this needs access to one of the top floor flats.

It is currently unoccupied (most are investor-owned) and no service charge has been paid for 3 years. The question is can we give notice and enter to get this work done?

All the flats have been done now bar this one and it affects the 3 below it. The managing agent is ‘seeking legal advice’,  but surely if we give notice (as in ASTs) we can enter in an emergency and this is an emergency.

Another question is, as there have been so many issues – as above the heating system, fire doors, no fire stopping, the extraction in the flats had falsified certification some had nothing, some had it not connected. Between this and the heating issues the LA has issued an enforcement notice as we had 45C in some flats last summer and on and on – can we take action (and be successful!) against the developer, I have heard that those who bought off-plan have a contract directly with the developer for a fully functioning unit/apartment which we have not had.

Another question I would love answered is how can developers produce such shoddy flats and get away with it? We don’t know what we have until we live in it.

Harlequin Garden



Comments

Teimoor View Profile

12:03 PM, 23rd May 2022, About a month ago

Hi There,

The rights to entry in favour of the Freeholder is usually enshrined in the lease of the property. As an RTM these rights are subrogated to the RTM company.

You should check the lease of the flat and verifiy under the relavant covenants. At the very least be able to provide 48 Hrs notice and then gain entry to the flat (changing locks etc) and provide the leaseholder with the new keys if necessary.

It is uncommon to not have any right of entry. Ive never seen it in 15 years of managing buildings.

Mike W

12:26 PM, 23rd May 2022, About a month ago

Given what you say, I suspect the developer was liquidated? Purchasers may have claims against a new build warranty but would need to check their purchase documentation. Were completion certificates ever issued?

Judith Wordsworth

12:29 PM, 23rd May 2022, About a month ago

Look at your lease and it will tell tell you requirements for access arrangements. Is the owner local?
Re other questions: How old is the development? For those who purchased off-plan they may be able to do a collective action under breach of contract or claim under the NHBC. If they purchased without a mortgage did they get surveys done? If their solicitors didn’t obtain the correct paperwork incl building sign offs then maybe a negligence claim.
Did those that bought secondhand visit the property in person/have surveys/ have mortgages?
Some developers are better than others, but all developments have local authority regular building regs inspection and sign off during the build.
I take it that the developer is still trading? If you are saying that certificates were fraudulent then you’d have a legal case against the developers, maybe also the Local Authority and possibly your solicitors for lack of due diligence and possibly the mortgage surveyor. Again a collective action pools resources.

Rod

13:10 PM, 23rd May 2022, About a month ago

3 years of outstanding service charges. I hope you have at least started legals to recover - some leases require all works to be funded, implying no arrears.
Also check Land Registry and contact their lender to ask them to get involved - lenders will often fund as it protects their asset - as the lease no doubt has a forfeiture clause.

Hopefully your development still qualifies for new build warranty and developer is still trading.
Assuming you documented all defects and remedies.

Your starting point should be to read the lease to fully understand both parties responsibilities, obligations and contractual redress.

Dylan Morris

9:53 AM, 24th May 2022, About a month ago

Reply to the comment left by Rod at 23/05/2022 - 13:10I can see why you went down the RTM route here. However the ultimate remedy for non payment of service charges is forfeiture of the lease. Unfortunately this power is only available to the Freeholder the RTM Company has no such ability. One of the downsides of going RTM. Might be a lost cause given the freeholder has lost control, but could be worth speaking to the freeholder to see if they can help ?

CMS

4:03 AM, 27th May 2022, About 4 weeks ago

i appreciate that as an RTM you probably have the details of the owner of this property but the fact that it is vacant and they are not paying SC does seem a little strange to me.

I would say that the first thing you should do is get a copy of the legal title from the land registry just to check who is the registered owner and whether they (a) have died; or (b) are a dissolved company.

Ultimately, yes, as everyone has said, the lease should provide you with access rights but i think you should try and find out who owns the property for the future.

If you don't have the right to enter the property...did you mention that you have smelt gas coming from the property? (practical solution not the legal one!)

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