Recurring damp in a ground-floor flat: whose problem?
Flat 2 is a ground-floor flat in a 12-flat block. The leaseholder, Ms Iqbal, reports black mould in the main bedroom and water staining on the skirting. A damp survey attributes the problem to rising damp caused by a defective damp-proof course, and also notes a leaking communal downpipe that is discharging against the wall. The lease makes the tenant responsible for 'internal decorations and the interior of the flat' and the landlord responsible for 'the structure, exterior, common parts and drains'. The buildings insurance excludes damp and rising damp but covers escape of water. A contractor quotes £4,500 to install a new DPC and £800 to repair the downpipe. There is no reserve fund for structural works. Ms Iqbal has withheld £900 in service charges, saying she will pay when the damp is fixed.
1. Allocate responsibility for the DPC and downpipe defects, with reasons.
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Downpipe. It is a communal drain/common part. The landlord's repairing covenant covers it. It is urgent because it is discharging against the wall and worsening the damp.
DPC. A defective damp-proof course is part of the structure. The tenant's covenant for internal decorations does not transfer structural repair to her. The insurance exclusion for damp/rising damp does not change the lease allocation; insurance is a funding mechanism, not a liability rule.
Causation check. Confirm the DPC defect is not caused by tenant alteration or lack of ventilation. If it is, the position may differ, but the survey points to a defective DPC and the downpipe.
Conclusion. Both defects fall to the landlord; Ms Iqbal remains responsible for internal redecoration after the works, subject to the lease.
2. What consultation and funding steps should the agent take before commissioning the £4,500 DPC work?
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Consultation. £4,500 ÷ 12 = £375 per flat, above the £250 s.20 threshold. The DPC work is qualifying works, so the agent should serve a notice of intention, obtain observations, and serve a notice of reasons before contracting. The downpipe repair may be urgent; if it can be done without consultation, document why, but do not use urgency to avoid consultation for planned DPC work.
Funding. There is no reserve. Options are a special levy, spreading the cost over the next budget, or a payment plan. The lease must permit the method. If consultation is skipped, contributions are capped at £250 per flat unless the FTT dispenses.
Action. Get two or three quotes, specify the works, consult, then commission. Keep Ms Iqbal informed.
3. How should the agent handle the £900 withheld service charge?
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Do not ignore the disrepair. Acknowledging the defect and setting a works timetable is the best way to reduce the dispute. Withholding service charges is not a lawful set-off merely because of a repair complaint; the leaseholder should use the FTT or complaints route.
Arrears handling. Issue a clear statement, confirm the s.21A summary has been served, offer a payment plan, and avoid forfeiture threats. If arrears continue, consider FTT determination or debt recovery, but first address the repair.
Risk. Using arrears as leverage while the landlord is in breach of a repairing covenant may worsen the dispute and be criticised. Keep the two issues separate in correspondence.