COMPLAINT
This case concerns a dispute referred to The Property Ombudsman (TPO) from the lessee (the complainant) in connection with the performance of the agent, instructed by the freeholder, carrying out management functions. The complainant lived in a large block of flats and had made numerous complaints about the noise from surrounding flats.
The issue that the Ombudsman was asked to examine was the agent’s alleged failure to carry out their duties in enforcing a clause in the lease. This clause stipulated that all lessees had to ensure that their properties were carpeted, in order to minimise noise.
The agent said that they had investigated the noise complaints made by the complainant, in particular about two flats. They said that one of the flats was fully carpeted, apart from small areas in the bathroom and kitchen but there was no carpet in the other flat. The lessee in that flat has installed wooden flooring; initially he said he was prepared to comply with the lease and carpet his flat. However, that did not happen and the flat owner later refused to discuss the matter further and would not respond to any correspondence.
The flat owner had installed wooden flooring but then said he would carpet it. That didn’t happen and he refused to discuss the matter and would not respond to any correspondence.
Both flat owners were asked about the noise issues but denied that there was any cause for concern. Following this the agent explained to the complainant that they could take legal action against the flat owners to compel them to comply with the provisions of the lease. However the agent also explained that the lease required the complainant to provide an indemnity for the costs if she wanted the agent to pursue court action.
The complainant refused to give an indemnity and the agent advised that, in those circumstances, they could not take the matter further.
INVESTIGATION
In coming to a judgement on this case, the Ombudsman took into account the following:
The clause of the lease for the property which the lessee made reference to, which stated:
‘To lay and maintain at all times in all parts of the Demised Premises [the Property] good quality carpeting and underlay except that in the kitchen and bathroom all over cork or rubber covering or other suitable sound-deadening and insulating floor covering may be used instead of carpet.’
The lease also stipulated that where a lessee makes a complaint relating to ‘any nuisance annoyance obstruction or other inconvenience’, the freeholder may take further action against the occupier defaulting on the lease. No lessee should create a nuisance or annoyance.
This clause further provided that if the freeholder takes action against the offender, all costs in doing so, are to be paid by the lessee making the complaint.
The agent’s Management Agreement with the freeholder stated that they would deal with enquiries and/or complaints from the lessees and advise them on the terms of the lease agreements.
FINDINGS
The Ombudsman noted that the complainant had made complaints a year previously concerning the noise from a different flat which was found not to be carpeted. The freeholder’s solicitor wrote to the lessee to request that a suitable carpet and underlay was installed as per the lease. The lessee had not done so and court action had commenced. On that occasion, the complainant was not requested to cover the cost.
Due to this, the complainant was of the opinion that, as the agent had not asked for her to cover the costs previously, any subsequent complaints concerning excessive noise would be auctioned without the need for her to provide an indemnity for costs.
OUTCOME
The Ombudsman considered it correct that the agent referred to the relevant clauses of the Lease, and stipulate that the complainant provide an indemnity for any action undertaken in the pursuance of the noise complaints. The fact that on one occasion they did not ask for an indemnity did not mean that a precedent had been set.
The role of the agent was to try and resolve any complaints, advise on the terms of the lease and arrange specialist or legal advice if instructed. Having considered all the evidence, including all complaints correspondence, the Ombudsman concluded that the agent had met their obligations. They could not force the other lessee in the block to comply with the lease, but they did recommend that legal action could be taken so long as the complainant covered the costs.
The complainant was not prepared to do this and therefore there was nothing more that the agent could do. This complaint was not supported and no compensatory award was made.
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