COMPLAINT

A case that The Property Ombudsman (TPO) was recently asked to review came from a leaseholder concerning the ongoing upkeep of a planter situated directly in front of her flat’s window along with the incorporation of a birdbath ornament within the planter, which had been placed in the communal garden by another resident leaseholder.

The complainant leaseholder said that she wanted the birdbath ornament removed from the planter outside her window as it reflected another leaseholder’s personal taste and was, in her view, therefore, an inappropriate feature to have in a shared space.

She also complained that the quality of the planter had deteriorated, demonstrating a lack of attention to the outside area of the property.

One of the other residents had been a volunteer, helping with the upkeep of the development, which the leaseholder also believed to be the problem. She had expected a professional maintenance service to be provided for the properties and the outside space, in return for her mandatory service charge payment. In regard to the leaseholder’s service charge, the complainant’s annual contribution towards the gardening was £35.

THE MANAGEMENT COMPANY’S RESPONSE

In their response, the management company said that they did not feel that there was anything wrong with the aesthetics of the planter or with the quality of the gardening at the development. They also said that in their opinion, the birdbath “added depth and encouraged butterflies to the development and, furthermore, it was not visible from the leaseholder’s window.”

The response from the management company was swift and appropriate, although, perhaps, not what the complainant sought. However, the problem was resolved without further discord.

In addition, the management company demonstrated that they had been commended for the condition of the site by the Residents’ Association and had not received complaints from any of the other residents.

During the investigation, the resident volunteer ceased her involvement. The management company proposed to employ another professional gardener, which was agreed by the Residents’ Association’s committee members.

INVESTIGATION

When reaching a decision, the Ombudsman considered the terms of the lease in order to establish who was responsible for the upkeep of the planter. The relevant section read as follows:

“3.4 The paths roads parking areas and gardens on the Development enjoyed or used by the Lessee whether in common or exclusively as herein provided and the boundary walls and fences bounding the Reserved Property so far as the obligation for maintenance and repair thereof rests with the Lessor.”

As per the terms of the lease, the Ombudsman was satisfied that the primary responsibility was indeed with the lessor. Therefore, the removal of the birdbath ornament or direction relating to the upkeep of the planter could only have come from the lessor.

However, the Ombudsman was also mindful that the lessor had delegated the task of managing the upkeep of the planter to the management company and would have expected that person to undertake the task in an appropriate manner in the interests of all residents.

The management company did respond promptly to this complaint, in fact, on the same day that it had been raised. Their response advised the complainant that they did not agree with their opinion and, therefore, they would only take further action if they received similar complaints from other leaseholders. It was accepted that this was not a response that the leaseholder would have wanted to hear, but it was considered to have been appropriate in light of the fact that there had not been any other complaints. It was ultimately a matter of subjectivity.

There was also evidence that the management company had given the issue further attention, following the complaint. The volunteer resident ceased her involvement with the gardens and a new contractor was duly appointed by the management company. Photographs provided also demonstrated a visible improvement in the planter than those that had been taken by the leaseholder at the time of the complaint.

OUTCOME

The Ombudsman did not support this complaint and did not consider that the circumstances merited an award of compensation.

LEARNING

With leasehold blocks, issues of this nature will arise from time to time. The management company will only act under the authority given to them by the lessor. This means that the terms of the lease will need to be referred to, as The Property Omudsman had done in this case, to check who has the responsibility for the matter concerned.