Help & Advice

The BMT Surgery

Bruce Maunder Taylor, a chartered surveyor and member of ARMA’s Council, provides answers to readers’ questions. If you have a question, email it to info@flat-living.co.uk.

QI am a Director of an RTM Company, we want to demolish

an old and inadequate bin store and rebuild a new one, large enough to include recycling bins, near the front entrance of our site where there is, at present, an area of shrubbery, overhung by trees, and which is difficult to keep in presentable order.

We assumed that would be all right and proceeded, but the freeholder has claimed we have no right to do it, that we are trespassing on his property, and is claiming damages. What is our position?

Name and address withheld Your freeholder is not that unusual and we are hearing of similar problems with other RTM companies. The RTM Company has acquired a Right To Manage, it has not acquired any property rights.

If the landlord cannot be persuaded to be reasonable, you will have to consult a lawyer. Some leases provide that all the outside areas are common parts with the lessees enjoying wide-ranging common rights. Some leases provide that the outside areas are Reserved

Property or some such similar expression, with the lessees having very limited stated rights, possibly only with a right of access and egress to and from their flat, and no stated right to enjoy the gardens or other outside areas. A lawyer is also likely to look for any provision in the lease in the landlord’s obligations for storage and removal of rubbish or waste from the site. It is not unusual for freeholders to try to take over a valuable roof space or basement area from which some money can be made: sometimes the freeholder is successful, sometimes not. It is unusual for a freeholder to cause difficulty over the re-sitting of a bin store. If he really wants to be difficult, and if it is right that you are technically trespassing on his Reserved Property, he might take an action against the RTM Company for damages, or take some physical action with regard to your new bin store. How much both parties would have to pay in litigation costs, and how much sympathy either party might get from the Courts is open to question. Whether or not the freeholder’s real intention is to try to sink the RTM Company with a view to recovering management control is a possibility. Our advice is to ask for a meeting to try to understand what is really behind this freeholder’s actions. That may cause a resolution to be reached, or it may result in you taking competent legal advice.

QOn the top floor in our block of flats there is one particular

lessee who uses the flat for about 4 weeks a year. For the remainder of the year he lives elsewhere and we now find that, when not in residence, he has the water left on and the heating turned off. Last winter an un-insulated pipe in his flat burst causing serious damage to both his flat and the flats below, and a building insurance claim of over £50,000 (quite apart from any contents claim by the individual lessees). The insurance company loss adjuster has asked questions about how long the flat was left vacant. We are worried whether the claim will be denied because the flat was left vacant for so long each year.

Name and address withheld Anecdotal evidence suggests that few people read their insurance policy or understand its detailed limitations until a claim is made. Different insurance policies have different levels of cover and/ or limitations. Most policies have some sort of restriction or limitation about vacant properties. There is usually a section in the policy that deals with Unoccupied Buildings Conditions. Blocks of flats with a significant number of holiday flats or other reasons for them being unoccupied for long periods of time, really ought to circulate an advice note to all lessees explaining the steps that must be taken so that the insurance cover is not prejudiced. In regard to your particular question, the insurance terms have not been attached to your letter and they will have to be carefully considered. It may be that the claim for damage to the unoccupied flat can be avoided by the insurance company, leaving that lessee to repair his own floors, decorations and other damage, but it is doubtful that the loss adjuster can avoid the claim to other occupied flats lower down the building which were affected. It may be appropriate for your management company to look at your standard form of lease. Many modern leases have a schedule of regulations which can be amended or added to by the landlord fairly easily. Does your lease have any regulation or other covenant which has been breached by this lessee who left his water on and his heating off? Can he be pursued for any uninsured losses or any consequential increase in next year’s insurance premium? In general this experience leaves lessons to be learned and things to be thought about.