Responsibility for Repairs:

Who is responsible and who is obliged to pay for repairs to leasehold blocks and flats? What is the procedure if repairs are unnecessarily delayed or not carried out to the leaseholder’s satisfaction? What is the Section 20 procedure?

This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.

It is difficult to generalise because leases vary, but statutory rules will always override lease contracts. In any event, with most leases, the landlord (freeholder) or as delegated to his managing agents, is obliged to organise repairs, to maintain in good order the building: the roof, external walls, gutters and downpipes, drains, paths, windows, doorways, common parts of the building and the main structure.

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On the other hand, the individual leaseholders (or shared freeholders) will in most cases be responsible for their own internal repairs. The individual flat leaseholder’s responsibilities will usually include internal plumbing serving the flat, wiring, internal walls, floors and external windows’ glass.

The individual flat leases should be clear about each party’s obligations, but this may not always be the case.

Where repairs will cost individual leaseholders more than £250 the landlord is obliged to go through the (Landlord and Tenant Act 1985) Section 20 consultation procedure, when he is looking to recover the costs of repair via the service charge. Section 20 is a three stage consultation process consisting of (1) a notice of intention, (2) notification of estimates, and (3) notification of award of a contract to, for example, a builder, scaffolder, roofer etc.

Repairs Disputes

Should a landlord fail to comply with his repairing obligations under the lease, leaseholder/s have the right in some circumstances to apply for a court order and/or damages (compensation), and the landlord is also at risk of further compounding the cost of any claim if personal injury should result as a consequence of his failure to repair.

Leaseholders can claim damages even if the repairs have been carried out, if they we delayed or if the leaseholder had to go to excessive lengths to get the repairs done.

A Housing Disrepair Protocol is provided by the Ministry of Justice for the benefit of leaseholders who intend to bring a disrepair claim. This protocol applies to all tenants of rented premises including long-leaseholders in England & Wales.

If repair work is urgent the landlord can seek a dispensation from the need to consult from the First Tier Tribunal (Property Chamber), or the Leasehold Valuation Tribunal in Wales.

The protocol sets out the procedure the court will expect the parties to follow in a housing disrepair dispute prior to the start of any legal proceedings. The protocol aims to encourage the parties to exchange information and clarify issues at an early stage, with the intention of resolving the matter without the need for litigation.

In cases where the leaseholder/s feel the need to challenge the landlord about repairs and start the Housing Disrepair Protocol, the Landlord must have be given proper notice of the disrepair, given a reasonable amount of time to deal with it, and subsequently, a letter before legal action. What is a reasonable time would be dependent on the urgency of the repair.

The courts are busy and expect legal action to be a last resort; they expect the parties to have exhausted reasonable negotiation, and considered Alternative Dispute Resolution (ADR) as a better – cheaper and faster – way of dealing with the dispute. This could include professional mediation, arbitration or agreed neutral evaluation by an expert. Leaseholders of councils housing, or housing associations are able to use their landlord`s internal complaints procedure and ultimately the Housing Ombudsman.

Repairs Dispute Procedure

If a landlord fails to deal adequately with a disrepair situation, and where discussions and negotiations between the parties have failed to resolve it, or where ADR has been explored, the leaseholder may proceed to the Protocol. Leaseholder/s may start the protocol themselves or use a solicitor to do this for them.

The landlord is obliged to reply to a “letter of claim” within 20 working days of receipt of the letter, disclosing all relevant details, records, estimates and other documents relevant to the leaseholder`s proposals. If there is no response, legal proceedings can be started.

The Protocol sets out detailed steps regarding appointing an independent expert and encourages the parties to agree a single joint expert rather than each party appointing their own. Otherwise, if the parties cannot agree this, then a joint inspection by experts working for each party should be agreed beforehand.

Any damages to be paid will be on an indemnity basis; that is the leaseholder should, by payment of compensation, be put back into the position he would have been in had there been no breach of the lease.

The landlord may be liable to pay the leaseholder/s reasonable costs and expenses even if the matter does not reach the court stage, if the matter was justified and settled using the Protocol, and the leaseholder/s would have been awarded costs had he issued proceedings.

Disrepair protocol costs

The case of Birmingham City Council v Lee [2008] concerns a leaseholder claimant’s costs incurred while following the disrepair pre-action protocol.

The tenant who had a justifiable claim for disrepair needed legal assistance in advancing it. He had to initiate it in accordance with the relevant pre-action protocol. It was held that if the effect of the claim was to get the work done, then, provided that the landlord was liable for the disrepair, the tenant should recover the reasonable costs of achieving that result.

Birmingham City Council v Lee decides that, given the nature of the protocol, a claim begins at the start of the protocol steps, not at the commencement of litigation. Pursuant to CPR 44.9(2), the Court has the power to make a costs order for pre-allocation period, unrestrained by the limitations of whatever track the claim is allocated to.

Freehold, Shared Freehold or Leasehold?

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