Question 1

Drains Disaster

Accepted Answer

Q: We would be grateful for some advice regarding our management company's lack of a 'Map of the Drains' to our building. Background This situation first came to light, when our management company's drains contractors rodded the wrong pipe (too robustly) and caused a soil pipe joint to be dislodged. Unfortunately, for my husband and I, the open joint was located behind the wall of our bath tub in our bathroom. From the point of working on the drains, Friday 29 January 2016, the smells were horrific, and even more so, when four days later they discovered the problem, when taking off the bath panel and finding a small hole in the wall, from where the smell was more evident. They repaired the soil pipe joint the next day, 3 February 2016, by taking out a foot square of wall, exposing the dislodged soil pipe joint. The stench of methane gas was incredible, and neighbouring apartments were affected. During this time, Monday 1 February - Wednesday 3 February, the Development Manager visited. He could not even stay in the property for more than a few minutes (particularly once the problem was found) as the smell was so intense, yet we had to live in it for five days. During the day, we kept the doors and windows wide open, however at night, when the apartment was closed, the smells built up, making it impossible for us, and we became quite nauseous, and heady. Aftermath When questioned, the Development Manager, explained that the company do not hold plans of the drains! Therefore, we conclude that, in search of a blockage, they work by 'trial and error'. I have sent a letter of complaint to the management company, explaining the they have a 'duty of care' to hold such plans, and that this was the 'root cause' of our awful experience. The Management company, have since investigated the problem, and have responded as follows:- "Management Agents have no legal obligations to hold plans/drawings. It seems we were not provided with these documents upon handover from the builders/developer which unfortunately is not uncommon. I have been advised that (Management company's name) have requested such documents on several occasions over the years, but they have never been received" I personally spoke to the builder/developers 'customer services department' and was informed that they no longer hold the plans after a 10 year lapse. The property is 11 years old now, however, they insist that plans would have been handed over. I emailed the developer, and have received a response from their Senior Customer Services Manager, as follows:- "Once (Developers Company Name) have completed apartment buildings, they do handover all M & E (Mechanical and Electrical) on to the nominated Management Company and would have been. "We do not keep copies of files as these are not kept beyond five years after the completion of the development" The whole development was completed some five-six year ago! The builder/development company also gave me the name of the plumbing and heating company that worked on the site, however, this company are no longer in business. My husband and I have deep cleaned the apartment, including; walls, doors, furnishings and fabrics, in an effort to rid the lingering smells. We had hoped that the management company would at least cover the cost of curtain cleaning, which we only had carried out last summer. They have responded as follows:- "As a potential conclusion, we could investigate proceeding down the route of an insurance claim, however, it is likely any insurance excess would be more than the sum involved". "(Management Company Name) could agree to a £50 gesture of good will to be met from the service charges, for the inconvenience caused, however, this would have to be approved by the majority of all committee members" We feel this is an insult to ourselves, the resident association committee (to whom I have spoken and copied in) and the owners of the block (who are not aware of this at present). Our management company, clearly want to charge the owners for our blight, and their error. My husband and I do not accept this 'gesture of good will' which would come out of everyone's pocket! I am more concerned that, as our management company, their management of our block, has failed us. We would have expected them to be fair in this case, and cover our costs out of their profits. I would be very grateful for your advice, as I do not accept that our Management company can abdicate total responsibility, and duty of care. If they manage the block, they surely need to hold all of the plans to do so. Clearly without these plans, such incidents could occur again. We have asked our management company, how they intend to rectify this situation, yet, this more important query has not been answered. FPRA Legal Adviser Nick Roberts replies: You do seem to have had an unfortunate experience, and someone has clearly slipped up here. I do, however, have serious doubts as to whether you have the basis of a well-founded case in law here. I am advising on the assumption – please advise me if this is wrong – that the Management Company, which you are holding responsible for the missing drain plans, is employed by the freeholders here. If this is correct, then one immediately faces the problem that there is no contractual relationship between you, or any of the leaseholders, and the Management Company. The Management Company has a contract only with the freeholders. You cannot therefore sue the Company for breach of any implied term of the contract. If you have any claim against the Management Company it would have to be in tort i.e. you would have to sue them in negligence. It seems quite possible that a Court would hold that the Management Company would owe, independently of any contract, a duty of care towards the individual leaseholders, which you would argue that the company has breached. I nevertheless would foresee difficulties in overcoming two potential evidential hurdles. First, the burden of proof would lie on you to prove who was to blame for the loss of the plans. It sounds as though the builder/developers and the current managing agents are going to blame each other. You would have to prove that one or the other must have been to blame. The fact that you have found the builders much more ‘professional’ than the managing agents, so that it is more likely that they are to blame, may indicate to you that it is the managing agents are to blame, but it does not really amount to evidence. Suing them both might be a solution, but that still runs the risk of a judge saying that, unless there is something definite to point one way rather than the other, the claim must fail against both. The best that you could hope for would be that a sympathetic judge might take the view that one or other of them must have been negligent, and that he or she would then hold one or other liable, based on the impressions that they respectively gave. (Again, I am assuming that the current managing agents took over directly from the builder/developers: if another firm of managing agents were involved in an intervening period, even the argument that it must be one or the other becomes unfortunately quite untenable). Second, the other difficulty is that you would have to show that, on the balance of probabilities, the negligence on the part of the managing agents caused the mishap. It sounds as though this is quite possibly the case, but, again, I suspect that the managing agents are going to argue that, if one has to rod clear drains, then sometimes a joint may be dislodged, even if one has a full set of plans. One would, I think need to show that, on balance, if the drain contractors had had the plans, the joint would not have been dislodged. You would need to make a fairly clear case that, if the contractors had had the plans, that would have made a real difference. I would agree with you that it is not really appropriate for the managing agents to pay you a small sum in compensation out of the service charge account. The service charge can be raised for and spent on only the heads of expenditure which are set out in the Sixth Schedule of your lease. That would not cover compensating you for any alleged negligence on the part of the management company. Any of the other leaseholders could, I think, reasonably object to this expenditure. I appreciate that this is not the response which you were hoping to receive, but I can only advise on the legal position as I see it. That said, it may be that making a claim against the managing agents (based on a duty of care, and alleging that the mishap would not have occurred had it not been for the loss of the plans) might result in some more realistic offer of payment from the managing agents: and that this would have to be borne by them rather than by the service charge. Commercial companies have to bear in mind that neither side will get their legal costs paid on a small claim, and that it will cost them time and money to defend it. The most that the loser normally pays on a small claim is the court fee, and the other side’s witnesses’ and travel expenses. They may be prepared to ‘cut their losses’ and make an offer. [submitted March 2016]

Question 2

Drains Disaster

Accepted Answer

Q: We would be grateful for some advice regarding our management company's lack of a 'Map of the Drains' to our building. Background This situation first came to light, when our management company's drains contractors rodded the wrong pipe (too robustly) and caused a soil pipe joint to be dislodged. Unfortunately, for my husband and I, the open joint was located behind the wall of our bath tub in our bathroom. From the point of working on the drains, Friday 29 January 2016, the smells were horrific, and even more so, when four days later they discovered the problem, when taking off the bath panel and finding a small hole in the wall, from where the smell was more evident. They repaired the soil pipe joint the next day, 3 February 2016, by taking out a foot square of wall, exposing the dislodged soil pipe joint. The stench of methane gas was incredible, and neighbouring apartments were affected. During this time, Monday 1 February - Wednesday 3 February, the Development Manager visited. He could not even stay in the property for more than a few minutes (particularly once the problem was found) as the smell was so intense, yet we had to live in it for five days. During the day, we kept the doors and windows wide open, however at night, when the apartment was closed, the smells built up, making it impossible for us, and we became quite nauseous, and heady. Aftermath When questioned, the Development Manager, explained that the company do not hold plans of the drains! Therefore, we conclude that, in search of a blockage, they work by 'trial and error'. I have sent a letter of complaint to the management company, explaining the they have a 'duty of care' to hold such plans, and that this was the 'root cause' of our awful experience. The Management company, have since investigated the problem, and have responded as follows:- "Management Agents have no legal obligations to hold plans/drawings. It seems we were not provided with these documents upon handover from the builders/developer which unfortunately is not uncommon. I have been advised that (Management company's name) have requested such documents on several occasions over the years, but they have never been received" I personally spoke to the builder/developers 'customer services department' and was informed that they no longer hold the plans after a 10 year lapse. The property is 11 years old now, however, they insist that plans would have been handed over. I emailed the developer, and have received a response from their Senior Customer Services Manager, as follows:- "Once (Developers Company Name) have completed apartment buildings, they do handover all M & E (Mechanical and Electrical) on to the nominated Management Company and would have been. "We do not keep copies of files as these are not kept beyond five years after the completion of the development" The whole development was completed some five-six year ago! The builder/development company also gave me the name of the plumbing and heating company that worked on the site, however, this company are no longer in business. My husband and I have deep cleaned the apartment, including; walls, doors, furnishings and fabrics, in an effort to rid the lingering smells. We had hoped that the management company would at least cover the cost of curtain cleaning, which we only had carried out last summer. They have responded as follows:- "As a potential conclusion, we could investigate proceeding down the route of an insurance claim, however, it is likely any insurance excess would be more than the sum involved". "(Management Company Name) could agree to a £50 gesture of good will to be met from the service charges, for the inconvenience caused, however, this would have to be approved by the majority of all committee members" We feel this is an insult to ourselves, the resident association committee (to whom I have spoken and copied in) and the owners of the block (who are not aware of this at present). Our management company, clearly want to charge the owners for our blight, and their error. My husband and I do not accept this 'gesture of good will' which would come out of everyone's pocket! I am more concerned that, as our management company, their management of our block, has failed us. We would have expected them to be fair in this case, and cover our costs out of their profits. I would be very grateful for your advice, as I do not accept that our Management company can abdicate total responsibility, and duty of care. If they manage the block, they surely need to hold all of the plans to do so. Clearly without these plans, such incidents could occur again. We have asked our management company, how they intend to rectify this situation, yet, this more important query has not been answered. FPRA Legal Adviser Nick Roberts replies: You do seem to have had an unfortunate experience, and someone has clearly slipped up here. I do, however, have serious doubts as to whether you have the basis of a well-founded case in law here. I am advising on the assumption – please advise me if this is wrong – that the Management Company, which you are holding responsible for the missing drain plans, is employed by the freeholders here. If this is correct, then one immediately faces the problem that there is no contractual relationship between you, or any of the leaseholders, and the Management Company. The Management Company has a contract only with the freeholders. You cannot therefore sue the Company for breach of any implied term of the contract. If you have any claim against the Management Company it would have to be in tort i.e. you would have to sue them in negligence. It seems quite possible that a Court would hold that the Management Company would owe, independently of any contract, a duty of care towards the individual leaseholders, which you would argue that the company has breached. I nevertheless would foresee difficulties in overcoming two potential evidential hurdles. First, the burden of proof would lie on you to prove who was to blame for the loss of the plans. It sounds as though the builder/developers and the current managing agents are going to blame each other. You would have to prove that one or the other must have been to blame. The fact that you have found the builders much more ‘professional’ than the managing agents, so that it is more likely that they are to blame, may indicate to you that it is the managing agents are to blame, but it does not really amount to evidence. Suing them both might be a solution, but that still runs the risk of a judge saying that, unless there is something definite to point one way rather than the other, the claim must fail against both. The best that you could hope for would be that a sympathetic judge might take the view that one or other of them must have been negligent, and that he or she would then hold one or other liable, based on the impressions that they respectively gave. (Again, I am assuming that the current managing agents took over directly from the builder/developers: if another firm of managing agents were involved in an intervening period, even the argument that it must be one or the other becomes unfortunately quite untenable). Second, the other difficulty is that you would have to show that, on the balance of probabilities, the negligence on the part of the managing agents caused the mishap. It sounds as though this is quite possibly the case, but, again, I suspect that the managing agents are going to argue that, if one has to rod clear drains, then sometimes a joint may be dislodged, even if one has a full set of plans. One would, I think need to show that, on balance, if the drain contractors had had the plans, the joint would not have been dislodged. You would need to make a fairly clear case that, if the contractors had had the plans, that would have made a real difference. I would agree with you that it is not really appropriate for the managing agents to pay you a small sum in compensation out of the service charge account. The service charge can be raised for and spent on only the heads of expenditure which are set out in the Sixth Schedule of your lease. That would not cover compensating you for any alleged negligence on the part of the management company. Any of the other leaseholders could, I think, reasonably object to this expenditure. I appreciate that this is not the response which you were hoping to receive, but I can only advise on the legal position as I see it. That said, it may be that making a claim against the managing agents (based on a duty of care, and alleging that the mishap would not have occurred had it not been for the loss of the plans) might result in some more realistic offer of payment from the managing agents: and that this would have to be borne by them rather than by the service charge. Commercial companies have to bear in mind that neither side will get their legal costs paid on a small claim, and that it will cost them time and money to defend it. The most that the loser normally pays on a small claim is the court fee, and the other side’s witnesses’ and travel expenses. They may be prepared to ‘cut their losses’ and make an offer. [submitted March 2016]

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