Q: Since taking over the day to day management of our block from agents we have become increasingly aware of some of the finer points of the lease between the freeholder and ourselves in respect of the ’common’ areas and of the lease between the freeholder and individual apartment lessees, which of course includes ourselves.
Our specific query relates to the fact that some lessees have at some time in the past, in contravention of their lease with the freeholder, and a deed of covenant with this company, made structural changes to their apartments, particularly in respect of windows and balcony frontages, for which they have not sought the approvals required of the freeholder, this company or the planning authorities. As the changes have been for the better generally and have not been commented on by planners visiting for other projects, or the freeholder’s staff, then it has seemed best to let sleeping dogs lie.
We wonder however what liability we have as directors for work carried out by individual lessees’ contractors in respect of poor workmanship having health and safety implications. For example, should a person fall through a now insecure balcony rail, could we be held liable? Also, do we assume responsibility for parts of the structure ‘illegally’ changed as it has now de facto become part of the building’s structure, the maintenance of which is our responsibility? Finally, what should be our actions, if any, in addressing such past changes and any planned changes that we might become aware of?
FPRA Committee Member Shaun O Sullivan replies:
Although I am not a lawyer, my reading of the Deed of Covenant between the ‘Service Company’ and the Lessee places, in accordance with the covenant, an obligation to ‘maintain, repair, redecorate and renew the………structure…….’ In defining more closely the ‘structure’ it is stated to include the ‘external walls’ which are, again, more closely defined and are stated to include ‘all windows and balconies’ but not any glass contained therein which, in accordance with the First Schedule, appears to form part of that which has been demised and as such the responsibility of the lessee. I would thus see maintenance and any replacement of the windows and balconies as being the responsibility of the Service Company. You don’t say what programme the Service Company – or, indeed, your former agent(s) – might have published for replacing windows and balconies over time, but I am assuming that, in view of the age of the block (40 years) and the materials which might have been used at the time, that, in meeting its obligations under the terms of this covenant, most windows and balconies would, by now, have been replaced by the Service Company or its agent(s) and probably (in view of the apparent absence of a reserve fund facility within the lease) on the basis of a rolling programme and funded through the Service Charge. And I would assume that windows and balconies replaced in this way would have been undertaken on the basis of achieving as close a design match to the original as possible or in accordance with any design agreed with the freeholder (and hopefully made known to lessees) and in accordance with building regulations.
[Submitted June 2017]