Question 1

Rats

Accepted Answer

Q: As Company Secretary of the freehold company I am seeking advice about a number of issues The block was built in the early 1900s. There are six flats in the block. It is at the end of a terrace of similar six flat blocks. Five out of the six flat owners bought the freehold in 2004. Four of the five freehold company members now rent out their flats and live elsewhere. I am one of these four. One of the flat owners, who is also a director and member of the freehold company, has left her flat (no 58) vacant for about 18 months though she still collects post from there and we do not have a new address for her.. Recently the flat has become infested with rats and when the police broke in because of the smell they found the flat to be piled four to five feet high with possessions/rubbish to the extent that they could not access all of the rooms to check for a suspected body. The police also reported seeing a considerable number of live and dead rats. The matter is now in the hands of Environmental Health who are I believe going to issue a notice to get the flat owner to clear the flat so that pest control can access it. The owner of flat 55 was the only owner in the block of six who did not buy into the freehold and though the flat has changed hands since then, the current flat owners have not joined the freehold. They raised the issue of flat 58 being vacant and the belief that there were rats in it in February this year. I responded by contacting the owner of flat 58 and asking her to deal with the rats. She responded and said she was laying bait. During March there were complaints about the smell which seemed to come and go and which we in the freeehold company took to be bait treated rats dying underneath floorboards or in wall spaces. Towards the end of March the smell became very bad and was clearly coming from Flat 58. The flat owner responded to my emails asking her to take action to deal with it but said she and her husband were out of the country and could not act. After a warm weekend in London the police were called by other tenants, broke in believing there could be a body in there and reported their findings to Environmental Health. Environmental Health are trying to work with the co-operation of the flat owner which at present is not forthcoming so the process of dealing with it is taking time. Flat 55 believes that the situation is the fault of "management lapses" and as a gesture of goodwill wants the freehold company to suspend their monthly maintenance payments until the matter is sorted out. Looking at the lease it seems to me that the "landlord" ie freehold company has no right to enter a flat. Some paragraphs talk about in an emergency but there is no provision for the "landlord" to hold keys and be able to access the flats without breaking in. In your view have there been "management lapses". Were there things we should have/could have done? I recognise that regardless of your answer to that question it could be good for ongoing relations to make a gesture of goodwill towards Flat 55 but I am not sure that the terms of lease allow it. Please could you advise? Finally, (for the moment) the Council served notice on the free hold company to arrange pest control treatment for the whole block. The time periods in the notice cannot be enforced because the pest control company cannot access Flat 58 in time but the work will still need to be done. Is this something that the company can pay for from the maintenance fund which each of the six flat owners pay in to (£85 monthly) or is it something the freehold members need to pay for separately? FPRA Committee Member Shaun O’Sullivan replies: Firstly, and although I can understand your sense of unease about what the residents of Flat 55 have had to suffer, there is, perhaps not surprisingly, absolutely nothing in your lease which would allow you, as Lessor, to relieve this owner of his obligation to pay a 1/6 share of the Service Charge. And if the owner decided to withhold the charge that would put him/her in breach of the lease with potentially severe consequences. In my view this is not a route which you should pursue and your efforts should be directed at resolving the issue as quickly and as effectively as possible. The fact that the owner of Flat 55 is not a member of the freehold company is largely immaterial; the essence of the relationship is one between Lessor and Lessee (or Landlord and Tenant to use the definitions of the Landlord & Tenant Act), irrespective of the composition of the freehold company, and in that regard it’s a question of both parties upholding their responsibilities and obligations under the lease. So far as any ‘management lapses’ are concerned, firstly you, as Landlord, have to be careful not to compromise your obligations under the lease (Clause 4 (6) of the Landlord’s covenants to allow the Tenant to ‘…peaceably enjoy the flat during the Term without any lawful interruption by the Landlord…’. This is, of course, subject to the Tenant ‘…performing and observing the covenants..’ and, with the benefit of hindsight and after gaining entry, it would seem that the Tenant is significantly in breach of a number of covenants in the lease. The Tenant is, for example, required under Clause 3 (5) of the Tenant’s Covenants to ‘…keep the Flat…..in good tenantable repair…’; this is evidently not the case. Equally he is required under Clause 3 (16) of the Tenant’s Covenants ‘Not to do or suffer anything which renders any increased or extra premium payable for the insurance of the building…’; arguably the owner has allowed this to happen. Additionally, in accordance with item 9 of the Third Schedule, the Tenant is prohibited from bringing into the Flat anything which might exceed the advisable floor loading; arguably, the extent of the contents of the flat might also put the owner in breach of this clause. But, until entry was gained to the flat, it would appear that you were completely unaware of the situation within the flat and had no real reason to gain entry, albeit you did take action to make contact with the owner of Flat 58 so far as the smell is concerned. Notwithstanding the benefit of hindsight, I do not feel, based on the evidence presented, that you can be accused of ‘management lapses’. As for gaining entry is concerned, the lease does, in fact, under Clause 3 (7) of the Tenant’s Covenants, give the Landlord right of entry ‘…on giving reasonable written notice….’ with such notice being waived in an emergency. Unpleasant though the smell might have been, I’m really not sure that one could have reasonably viewed this as an emergency; you were aware / had been alerted to the smell, had taken steps to contact the owner who had acknowledged there was a rat problem and that it was being addressed. But certainly, in view of what has occurred since, you do, in my view and in due course, have the right to seek entry in order to confirm that the owner has complied with the Council’s requirements to clear the flat. So far as the general principle of meeting costs are concerned, and putting aside this specific issue for the moment, it is the case that costs associated with expenditure related purely to one of the demised premises would normally be met by the flat owner with the Lessor meeting only the cost for repair and maintenance for that element of the property retained by the Lessor – i.e. the common parts. Thus, if there was a problem in one of the flats which related solely to that flat, it would normally be for the flat owner to address the problem and meet the costs. Similarly, if the problem was in the common areas it would be for the Lessor to address the problem/meet the costs from Service Charge funds. This general principle is reinforced, so far as notices served by statutory authorities is concerned, in that Clause 3 (23) of the Tenant’s Covenants places an obligation on the Tenant ‘To comply forthwith at the Tenant’s own expense any nuisance or other statutory notice served by any local or public authority upon either the Landlord or the Tenant with respect to the Flat or the Tenant’s use of any part of the Building…..’ I’m not a lawyer but this, to me, places the cost of pest control for Flat 58 (and, arguably, the common parts of the building) firmly with the owner of Flat 58. So far as the cost of pest control for the other flats is concerned, Clause 3 (24) of the Tenant’s Covenants places an obligation on Tenants ‘Not to do or omit to do or suffer to be done or omitted to be done in or about the Flat or any premises used for the purposes of but not comprised in the Flat anything whereby the Landlord may become exposed to the liability to pay any penalty damages compensation costs charges or expenses and to keep the Landlord indemnified against all such liabilities.’ Again I’m not a lawyer but It seems to me that this is just what the owner of Flat 58 has done and that it is the owner of this flat who should meet the costs. However, the need to ensure that the work is undertaken within the timescales laid down by the Environmental Health Officer (EHO), compounded by the difficulty in communicating with the owner of Flat 58, it might, in the circumstances, be prudent to accept the risk of meeting the costs from Service Charge funds and in the hope that they can be recovered from the owner of Flat 58 in due course. Although, as explained, it would not normally be appropriate for the Lessor to meet costs in respect expenditure incurred with regard to individual flats, Clause 3 (5) (v) of the lease states that Tenants are required to pay 1/6^th of the amount ‘in complying with any of the covenants entered into by the Landlord or with any obligations imposed by operation of law which are not covered by the preceding sub-clause.’ Thus, on the assumption that the Notice served on the Freehold Company (Lessor) by the Council is a Statutory Notice (and I would imagine it is and probably served under the terms of the Environmental Protection Act 1990) then I believe that it would be appropriate for the costs to be met from the Service Charge, albeit recoverable from Flat 58 in accordance with Clause 3 (24) of the lease. I would certainly advise writing to the owner formally (and without a forwarding address I would suggest you do this by e-mail but with hard copy to the flat), outlining your concerns, pointing out alleged breaches of the lease and stating that you will hold them responsible for the cost of pest control on the basis that it is the state of Flat 58 which appears to have attracted vermin and resulted in the Notice served on the Freehold Company. Additionally, I would check your insurance policy with regard to any clause about leaving flats unoccupied and, on the basis of the report from the EHO, discuss with your insurers any impact on your policy. Finally, I would consider what options might be open to you to remove the owner of Flat 58 from your board of directors; in this regard you should consult your Articles of Association. It is, in my view, indefensible to have a director who has responsibility for managing the property but who is flagrantly in breach of the lease themselves.’

Question 2

Rats

Accepted Answer

Q: As Company Secretary of the freehold company I am seeking advice about a number of issues The block was built in the early 1900s. There are six flats in the block. It is at the end of a terrace of similar six flat blocks. Five out of the six flat owners bought the freehold in 2004. Four of the five freehold company members now rent out their flats and live elsewhere. I am one of these four. One of the flat owners, who is also a director and member of the freehold company, has left her flat (no 58) vacant for about 18 months though she still collects post from there and we do not have a new address for her.. Recently the flat has become infested with rats and when the police broke in because of the smell they found the flat to be piled four to five feet high with possessions/rubbish to the extent that they could not access all of the rooms to check for a suspected body. The police also reported seeing a considerable number of live and dead rats. The matter is now in the hands of Environmental Health who are I believe going to issue a notice to get the flat owner to clear the flat so that pest control can access it. The owner of flat 55 was the only owner in the block of six who did not buy into the freehold and though the flat has changed hands since then, the current flat owners have not joined the freehold. They raised the issue of flat 58 being vacant and the belief that there were rats in it in February this year. I responded by contacting the owner of flat 58 and asking her to deal with the rats. She responded and said she was laying bait. During March there were complaints about the smell which seemed to come and go and which we in the freeehold company took to be bait treated rats dying underneath floorboards or in wall spaces. Towards the end of March the smell became very bad and was clearly coming from Flat 58. The flat owner responded to my emails asking her to take action to deal with it but said she and her husband were out of the country and could not act. After a warm weekend in London the police were called by other tenants, broke in believing there could be a body in there and reported their findings to Environmental Health. Environmental Health are trying to work with the co-operation of the flat owner which at present is not forthcoming so the process of dealing with it is taking time. Flat 55 believes that the situation is the fault of "management lapses" and as a gesture of goodwill wants the freehold company to suspend their monthly maintenance payments until the matter is sorted out. Looking at the lease it seems to me that the "landlord" ie freehold company has no right to enter a flat. Some paragraphs talk about in an emergency but there is no provision for the "landlord" to hold keys and be able to access the flats without breaking in. In your view have there been "management lapses". Were there things we should have/could have done? I recognise that regardless of your answer to that question it could be good for ongoing relations to make a gesture of goodwill towards Flat 55 but I am not sure that the terms of lease allow it. Please could you advise? Finally, (for the moment) the Council served notice on the free hold company to arrange pest control treatment for the whole block. The time periods in the notice cannot be enforced because the pest control company cannot access Flat 58 in time but the work will still need to be done. Is this something that the company can pay for from the maintenance fund which each of the six flat owners pay in to (£85 monthly) or is it something the freehold members need to pay for separately? FPRA Committee Member Shaun O’Sullivan replies: Firstly, and although I can understand your sense of unease about what the residents of Flat 55 have had to suffer, there is, perhaps not surprisingly, absolutely nothing in your lease which would allow you, as Lessor, to relieve this owner of his obligation to pay a 1/6 share of the Service Charge. And if the owner decided to withhold the charge that would put him/her in breach of the lease with potentially severe consequences. In my view this is not a route which you should pursue and your efforts should be directed at resolving the issue as quickly and as effectively as possible. The fact that the owner of Flat 55 is not a member of the freehold company is largely immaterial; the essence of the relationship is one between Lessor and Lessee (or Landlord and Tenant to use the definitions of the Landlord & Tenant Act), irrespective of the composition of the freehold company, and in that regard it’s a question of both parties upholding their responsibilities and obligations under the lease. So far as any ‘management lapses’ are concerned, firstly you, as Landlord, have to be careful not to compromise your obligations under the lease (Clause 4 (6) of the Landlord’s covenants to allow the Tenant to ‘…peaceably enjoy the flat during the Term without any lawful interruption by the Landlord…’. This is, of course, subject to the Tenant ‘…performing and observing the covenants..’ and, with the benefit of hindsight and after gaining entry, it would seem that the Tenant is significantly in breach of a number of covenants in the lease. The Tenant is, for example, required under Clause 3 (5) of the Tenant’s Covenants to ‘…keep the Flat…..in good tenantable repair…’; this is evidently not the case. Equally he is required under Clause 3 (16) of the Tenant’s Covenants ‘Not to do or suffer anything which renders any increased or extra premium payable for the insurance of the building…’; arguably the owner has allowed this to happen. Additionally, in accordance with item 9 of the Third Schedule, the Tenant is prohibited from bringing into the Flat anything which might exceed the advisable floor loading; arguably, the extent of the contents of the flat might also put the owner in breach of this clause. But, until entry was gained to the flat, it would appear that you were completely unaware of the situation within the flat and had no real reason to gain entry, albeit you did take action to make contact with the owner of Flat 58 so far as the smell is concerned. Notwithstanding the benefit of hindsight, I do not feel, based on the evidence presented, that you can be accused of ‘management lapses’. As for gaining entry is concerned, the lease does, in fact, under Clause 3 (7) of the Tenant’s Covenants, give the Landlord right of entry ‘…on giving reasonable written notice….’ with such notice being waived in an emergency. Unpleasant though the smell might have been, I’m really not sure that one could have reasonably viewed this as an emergency; you were aware / had been alerted to the smell, had taken steps to contact the owner who had acknowledged there was a rat problem and that it was being addressed. But certainly, in view of what has occurred since, you do, in my view and in due course, have the right to seek entry in order to confirm that the owner has complied with the Council’s requirements to clear the flat. So far as the general principle of meeting costs are concerned, and putting aside this specific issue for the moment, it is the case that costs associated with expenditure related purely to one of the demised premises would normally be met by the flat owner with the Lessor meeting only the cost for repair and maintenance for that element of the property retained by the Lessor – i.e. the common parts. Thus, if there was a problem in one of the flats which related solely to that flat, it would normally be for the flat owner to address the problem and meet the costs. Similarly, if the problem was in the common areas it would be for the Lessor to address the problem/meet the costs from Service Charge funds. This general principle is reinforced, so far as notices served by statutory authorities is concerned, in that Clause 3 (23) of the Tenant’s Covenants places an obligation on the Tenant ‘To comply forthwith at the Tenant’s own expense any nuisance or other statutory notice served by any local or public authority upon either the Landlord or the Tenant with respect to the Flat or the Tenant’s use of any part of the Building…..’ I’m not a lawyer but this, to me, places the cost of pest control for Flat 58 (and, arguably, the common parts of the building) firmly with the owner of Flat 58. So far as the cost of pest control for the other flats is concerned, Clause 3 (24) of the Tenant’s Covenants places an obligation on Tenants ‘Not to do or omit to do or suffer to be done or omitted to be done in or about the Flat or any premises used for the purposes of but not comprised in the Flat anything whereby the Landlord may become exposed to the liability to pay any penalty damages compensation costs charges or expenses and to keep the Landlord indemnified against all such liabilities.’ Again I’m not a lawyer but It seems to me that this is just what the owner of Flat 58 has done and that it is the owner of this flat who should meet the costs. However, the need to ensure that the work is undertaken within the timescales laid down by the Environmental Health Officer (EHO), compounded by the difficulty in communicating with the owner of Flat 58, it might, in the circumstances, be prudent to accept the risk of meeting the costs from Service Charge funds and in the hope that they can be recovered from the owner of Flat 58 in due course. Although, as explained, it would not normally be appropriate for the Lessor to meet costs in respect expenditure incurred with regard to individual flats, Clause 3 (5) (v) of the lease states that Tenants are required to pay 1/6^th of the amount ‘in complying with any of the covenants entered into by the Landlord or with any obligations imposed by operation of law which are not covered by the preceding sub-clause.’ Thus, on the assumption that the Notice served on the Freehold Company (Lessor) by the Council is a Statutory Notice (and I would imagine it is and probably served under the terms of the Environmental Protection Act 1990) then I believe that it would be appropriate for the costs to be met from the Service Charge, albeit recoverable from Flat 58 in accordance with Clause 3 (24) of the lease. I would certainly advise writing to the owner formally (and without a forwarding address I would suggest you do this by e-mail but with hard copy to the flat), outlining your concerns, pointing out alleged breaches of the lease and stating that you will hold them responsible for the cost of pest control on the basis that it is the state of Flat 58 which appears to have attracted vermin and resulted in the Notice served on the Freehold Company. Additionally, I would check your insurance policy with regard to any clause about leaving flats unoccupied and, on the basis of the report from the EHO, discuss with your insurers any impact on your policy. Finally, I would consider what options might be open to you to remove the owner of Flat 58 from your board of directors; in this regard you should consult your Articles of Association. It is, in my view, indefensible to have a director who has responsibility for managing the property but who is flagrantly in breach of the lease themselves.’

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