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Question Title: Blocked drain
| Question: 441 |
A ground floor flat in a block recently had a problem with an overflowing manhole cover in a corridor. The drain was blocked and it was pushing raw sewage up and into the nearest flat. It has caused damage to the living room - mainly the flooring - and the room is not habitable.
Do you think the tenants have a right to leave and terminate the AST? It is now two weeks since the problem was first reported and the building management company and owners do not seem to be doing anything fast. There was talk of an insurance claim but an assessor hasn't been near?
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The blockage would appear to be occurring in the common parts of a block of flats. This will, prima facie, be the responsibility of the freeholder of the property. This should be confirmed by checking the terms of the headlease. In addition, the provisions of the 'block insurance cover' should be investigated to ascertain the extent of the cover provided. The issue should be taken up immediately with the managing agents backed up by a threat of an action for damages if the matter is not promptly resolved.
The tenant, despite the unpleasantness of the situation, will not have the right to terminate the tenancy as there has been no fundamental breach by the landlord of his statutory repairing obligations, but they might well be entitled to a remedy in damages. Any costs including a tenant's claim for damages should be recovered either from the 'block insurance or from the freeholder. If there has been a negligent lack of action by the block's managing agents then the landlord's costs might be recoverable from them.
English law is not clear on the legal responsibility to the tenant where a property, or part of the property is rendered uninhabitable through 'act of God' or through no direct fault of the landlord. One view is that the tenant has a legal right to 'quiet enjoyment', and a tenant would be entitled, at least, to a reduction in the rent until the property is once again fully habitable. However, there appears to be no onus to pay the tenant's removal expenses or provide alternative accommodation in such cases.
In these situations, it is in everyone's best interests to act expediently. There is the additional risk that the local environmental health department will get involved and impose a statutory management order, or closure order - if they deem the premises 'unfit'. The owner of the flat needs to act in a morally responsible and landlord-like manner and sort the immediate clean-up problem in a matter of hours or days, taking the view that s/he he is likely to be re-imbursed by a claim against the freeholder, or his own buildings insurance.
If quick action cannot be taken, or the building repaired, or re-instated within a reasonable timeframe, then the landlord or his agent should seek to offer or agree a surrender of the tenancy where both parties mutually agree to bring the tenancy to an end. If the problem is indeed the responsibility of the freeholder, then the landlord would be entitled to claim against the freeholder for his loss of rent.
If the landlord is not willing to offer the tenant the option of surrender of the tenancy, then the tenant may have no option but to involve the local authority to inspect the property and take statutory action under the new HHSRS system. Whilst this approach lacks any degree of control by the agent it can be a relatively cost free way of dealing with such problems. The problem for an agent in this situation is that there is little that they themselves can do immediately other than try and persuade others to act as fast as they can.
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References:
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Pages:
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Hyperlinks:
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Letting Handbook |
Chapter 11 |
letting-handbook-and-factsheets.html
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Letting Factsheet No 28 |
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factsheet-28
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For more information, discuss on the Forum
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