conflicting advice from lawyers re liability for damages

[Jules-and-Boo]

I am (nearly) at my wits end.

I have a problem with the ground levels around my flat being high and coupled with badly placed low air vents, there has been an outbreak of damp, which I have had treated and repaired. My lease states that the external structure and void below floor joists is freeholders responsibility)

I had one lawyer state that this is the freeholders responsibility and quoted me an extortionate price for pursuing a claim through the court. So, I went to a different lawyer to see if there was a cheaper solution and if they could do mediation instead.

The problem is that they have said that there is no repair required to the walls and that the ground level and correction of air vents is my responsibility.

So - what do I do? I can't really get a third opinion?

I'm thinking of telling each that their advice is different to other advice, but they charge just to read/ absorb/ reply.

One of them is right - I want it to be the first one - and then I want a lawyer who will mediate.

Any suggestions, please?

[KidKruger]

If the lease says it?s freeholder?s responsibility, that?s it isn?t it - in the contract ?

[Jules-and-Boo]

That's logical, yes - looking at it again, it appears one of them has missed some clear details..

So, either one's not up to speed, or the other's pulling a fast one. And what do I do about paying the one that's wrong?

[KidKruger]

I?d go small claims court with freeholder and based on outcome deal with respective lawyers accordingly.

[Jules-and-Boo]

Thanks KK. That's a good idea.

Do you have to raise all related issues in one claim? I have never applied to one so don't know very much - would they want a lower level of detail? otherwise I'll need a solicitor to plough through the documents (which is where I am now) or can I just present what I have and we work through it?

[KidKruger]

In small claims it?s all about what?s reasonable to expect, they understand you?re not a lawyer and cannot express your case as if you were a lawyer.

Outline the basis of your claim and refer to any factual evidence you can bring along to accompany it, they know you will be representing yourself.

Whoever you?re claiming against can bring along whoever they want - that?s their cost (and their problem / decision-point based on how convinced they are in their side of the argument).

Common for chancers to back-out with an offer of some kind before the case, often very soon before case is heard.

More detail you have, the better. The way you?ve explained the lease states freeholder responsibility says it all for me, sounds like freeholder is calling your bluff from what you say.

If you?re confident go to small claims, don?t even threaten just do it.

[intexasatthe moment]

I like https://forums.landlordzone.co.uk/forum/long-leasehold-questions for questions like this.

I think leases can be a bit vague . I can imagine that your lease is clear about "the external structure and void below floor joists being the freeholders responsibility" but wonder what the position is about the ground levels and air vents .

Whose responsibilty is it to keep/maintain the outside area in good order ? Is it mentioned under tenants or freeholders responsibilty ?

I've seen some properties where there is a gulley round the outside of the building so that earth and debris can be kept away from air vents .

I'm not sure I'd be rushing to a small claims court .

[IlonaM]

See also https://www.lease-advice.org/about-us/ for free advice and information.

[bobbsy]

Another solution (and this is not meant to be facetious) is to buy out the freehold - then it will be clear it will be your responsibility and you can fix it as you see fit. Possibly more expensive in the short term, but likely much less stress in the long term...

[Seabag]

How much have you spent so far on repairs?

[Jules-and-Boo]

intexasatthe moment Wrote:

-------------------------------------------------------

> I like

> https://forums.landlordzone.co.uk/forum/long-lease

> hold-questions for questions like this.

>

> I think leases can be a bit vague . I can imagine

> that your lease is clear about "the external

> structure and void below floor joists being the

> freeholders responsibility" but wonder what the

> position is about the ground levels and air vents

> .

>

> Whose responsibilty is it to keep/maintain the

> outside area in good order ? Is it mentioned under

> tenants or freeholders responsibilty ?

>

> I've seen some properties where there is a gulley

> round the outside of the building so that earth

> and debris can be kept away from air vents .

>

> I'm not sure I'd be rushing to a small claims

> court .

There are complexities - and I think this is where the lawyers are disagreeing.

You say you wouldn't got to Small Claims - what would you do?

I cam pursue a court order to cover my costs of getting the work done - and win or lose I know where I am. If I win I can then claim for damages - seems sensible and we are at an impasse. SC seem to be more tolerant of people representing themselves.

[Seabag]

Have you spent more than ?5K?

[Jules-and-Boo]

small claims are ?10k now

[dulwichbloke]

KidKruger Wrote:

-------------------------------------------------------

> In small claims it?s all about what?s reasonable

> to expect, they understand you?re not a lawyer and

> cannot express your case as if you were a lawyer.

> Outline the basis of your claim and refer to any

> factual evidence you can bring along to accompany

> it, they know you will be representing yourself.

> Whoever you?re claiming against can bring along

> whoever they want - that?s their cost (and their

> problem / decision-point based on how convinced

> they are in their side of the argument).

> Common for chancers to back-out with an offer of

> some kind before the case, often very soon before

> case is heard.

> More detail you have, the better. The way you?ve

> explained the lease states freeholder

> responsibility says it all for me, sounds like

> freeholder is calling your bluff from what you

> say.

> If you?re confident go to small claims, don?t even

> threaten just do it.

I know that was well meaning, but I don't think it is all good advice.

This is just my personal opinion, not legal advice, but here goes...

First of all, it is good practice to give written notice before making a claim, setting out your complaint and threatening to commence proceedings. Give them a deadline to comply with what you are asking and say that after that if you receive either no substantive response, or a denial of liability, you will commence proceedings without further notice. Ask them to provide a full response in writing, setting out the grounds on which they deny liability (if that is what they are doing by that stage). If you were simply to issue without any warning, that would usually be frowned upon, when the Judge considers the issue of costs.

Although the Court hearing a small claims track case will usually not order significant costs against either side, it retains a discretion to do so in the event of unreasonable conduct by any party, so it is not a free for all with never any potential for an adverse costs order.

This does sound like the sort of case where some legal input would be helpful, but whether or not you choose that route, don't think a court hearing a claim in the small claims track will ignore the law and just decide what is most reasonable - it will apply the law in the context of the facts it finds. It might be that there are legal issues to be argued - I cannot tell from what you have said, but it is something to be aware of.

As for mediation, a party cannot be forced to mediate, but there may be adverse costs consequences if they refuse to do so without good reason. It is certainly worth a go. The Court can give you information on mediation and mediators, I think. If not, you can get that information from the internet. Many courts operate a mediation service, so that is worth looking into.

I agree with the comments about chancers. Quite often such people will deny/ignore things until they are forced to engage with a court process and after that they change position. If you decide to start proceedings though, it is a good idea first to have decided you are committed to following them through to a conclusion, if necessary, because the other side may decide not to back down. Good luck.

[Seabag]

I?ve been to court a number of times, it?s not fun, in fact it?s pretty challenging.

The advice above is sound, do all you can to sort it before court action. Hence why I asked about the figure, as it?s easy to get swallowed up in the action. It?s also very expensive, very quickly.

Good luck.

[KidKruger]

dulwichbloke - yeah I got the impression that the freeholders have already said ?nah? and have assumed there?ll be a trace of that to show.

[dulwichbloke]

Fair point. A paper trail to show the Judge is important.

[intexasatthe moment]

"You say you wouldn't got to Small Claims - what would you do?" Actually I said I wouldn't rush to small claims .If it were me I'd gather as much info and get as much advice as possible before I decided what to do .

I'd post on the forum I mentioned above and take advice from the one Ilona has posted . I would try and determine what the lease says and whether it is silent on the issue .I would find out why the ground level is above the air vents ,how that has come about ,whether any party is responsible for the ground level now being above the air vents .

I might decide not to go to a small claims court ,I might decide to investigate the right to manage or buying the freehold .Or keeping the air vents clear if that's a possible alternative .