Here is a question from a reader facing a large repair bill to upgrade the heating in a London leasehold apartment block, along with LKP’s reply.
I wonder whether you or your associates might be able to advise on, or direct me to, any meaningful interpretation of the phrase “repair to a modern standard”
In 1980 I and my wife acquired a lease to our flat on the XXX Gardens Estate, in NW. The flats were constructed in 1979
Recently, the managing agent have advised of two Major Works Contracts (MWC) they plan to implement in 2014 at a combined cost to us of around £20,000.
In MWC P133B, the managing agent proposes, amongst several other items, to replace the existing Harcopak combined hot water cylinder and cold water tank located within each flat.
The managing agents claim the Harcopak units have reached the end of their useful life, as have the c/h radiators.
The replacement work involves extending the mains water service to each bathroom to serve a new Heat Interface Unit (HIU).
A further HIU seems to be required so that the separate usage of hot water and central heating water can be internally metered, controlled and remotely monitored.
While there are other issues that may affect the matter, lessees pay for repairs but not for improvements
In a letter written by the Company Secretarial Assistant, the managing agents claim that the work identified is considered a “repair to a modern standard”.
He quotes a case heard before the Leasehold Valuation Tribunal – LON/OOAG?LSC/2012?0047.
As the case was not accessible via the Google web site I had to obtain the papers from the offices of the First Tier Tribunal.
Unfortunately, the 61 pages only contain the ruling and no background information as to the reasons.
There is great doubt as to whether the Harcopak units and radiators have reached the end of their useful life, despite the report from Aecom, the Consultants used by CWH, that they have.
In the same letter quoted above, the managing agents confirm that, out of some 290 flats containing some 1740 radiators, it has only been necessary to replace 4 Harcopak c/w tanks, 1 h/w cylinder and six radiators during the last three years. A number of lessees, including ourselves, have independently replaced the Harcopak units. I am endeavouring to find out how many have done so.
I was very impressed with your support for Dennis Jackson,
There are a couple of things you may wish to do. If the landlord has decided they need to replace these units they presumably have an independent specialist survey which recommends the actions needed. You should be able to ask for this survey. Without any specific knowledge 35 years does seem to be quite old for the sorts of radiators being installed at that time. The survey may be suggesting things could be about to get a lot worse with leaks.
You also state you have replaced the unit in your flat. I assume you are still connected to the central system but have replaced elements within your flat at your own cost. If this is the case does the proposal from the landlord intend that your equipment is replaced again and if so have you asked what the landlord needs to replace these newer units.
The next big question is do you have a recognised tenants association on the site. If not its very important you form one as soon as possible. Once you become recognised you are entitled to appoint your own surveyor (at your joint cost) he is then entitled to examine any part of the site and any part of the proposals to reach a view on the need for your systems upgrade. Once you have a document from the surveyor and IF it disputes the need for the upgrade you can advise the landlord he undertakes the work at his own risk and you reverse the right to take both a s27 action to recover monies and a s24 action to have the landlords manager replaced.
As regards the issue of “improvements” this is a thorny problem which you may want to avoid. Many leases prevent “improvements”. But the courts rightly seem to accept updating many facilities and services do not constitute an “improvement”. For instance if your replacing old steel framed windows there is an obligation to install double glazed units. If your replacing electric cables it must be to current standard. Challenging an upgrade to a heating system unless it improved the site with radically new facilities may be difficult. The landlord will also be able to argue any new system will be more efficient save money. Even upgrading your TV aerial systems is a problem to argue. In your case the original was designed to receive 3 analogue TV channels. Any update will inevitably “improve” the number of channels available and the court is unlikely argue you should not have a digital service with a little more than three choices now that analogue has gone.
I note your answer to the update and the date 1979 which means that the system is 34 years old.
One can not argue that this is a period of time that could be considered that any system would possibly be in need of updating whether it would be necessary is debatable, newer systems whilst beneficial can be a nightmare when undertaken on the larger scale?
Having been in a position to undertake similar works the more efficient smaller replacements may be more beneficial over a period of say 2 years and then replace the main boiler once all flat replacements have been seen to work over a period of time, then the commissioning of the main boilers will be less exacting and beneficial to the residents.
Sorry to point out that our Managing Agents Peverel Managing Services Ltd have in the past updated systems that whilst old where working very well and though more expensive per say, have been replaced by Peverel.
For example Cirrus and the Warden Control System which was updated when only 20 years old, and was replaced by Cirrus who has been with Peverel owned up to Price Fixing for the replacement of systems that had been working?
Recently an LVT had agreed that there was no reason to update a Warden Control System where the cost was expensive as happened and were refunded I believe £3,000.00 as the update would have been completed by a mobile phone costing £200.00 only.
Janet any comments
Yes thats quite true as in one case we found it far far cheaper to abandon re-cabling and provide a cell phone in each flat.
The first thing that I would do ischeck is that the units ARE the landlord’s obligation to repair (replace) ( to whatever standard) in the lease(s).
Let’s assume that they are, and then there are two issues, one “repair” and the other “standard”
1 do they need repair (replacing)? While yours does not ( and that’s another issue on what share, if any, you might pay for the project) it is a question of whether the other (?) original units do. That needs specialist reports which you can organise collectively (even without a RTA though its best to do so) to establish the state of repair and whether the work needs to be done now, or later on, or even if it can be phased. Aklternative maintenance strategies might be found too.
2 As to standard then as indicated a modern equivalent replacement would not, in most cases, be an improvement. If the old units supplied adequate hot water and heating to all rooms, as the standard of heating and hot water to flats have not changed in a long long time, it unlikely that it would be an improvement or a change. Arguments might arise if say it only provided partial heating to some rooms and the work includes adding new radiators in hallways or a kitchen or bathroom, or replacing the need for additional heating such as gas/electric fires or a kitchen ascot.