I'm posting this exchange of emails to the forum because the information is important, and it gives a good idea of the depth of response you can get if you contact FIRST Call, and illustrates the fact that taking something up does make a difference.
At the meeting, Peter Exton (THCH) pointed out that, on a block by block basis, leaseholders would be charged equally for the upgrade to their blocks.
If they had already had replacement windows fitted, and THCH replaced everyone else's windows, they would be charged the same for window replacement to the block as all other leaseholders - but they would not have new windows!!
Further to last night's ESG, can ypou please quote, as far as you are able, the chapter and verse regarding the principles which are applied in arriving at the recharging system?
If I understood it correctly, leaseholders who have upgraded their property are liable to find themselves being charged for the same upgrades when the each block is upgraded, whether or not their own upgrades are removed, and therefore whether or not they derive any benefit from that particular part of the upgrade.
They will therefore in effect be being charged twice - once when make their own upgrade, and the second time to subsidise others in the same block.
The logical corrollary of this is that leaseholders should never improve their property externally, should never maintain their window frames, and so on. This is clearly the antithesis of the principles upon which right to buy was established.
In the case of my block, Gwilym Maries House, the council has not maintained the window frames, and they are therefore rotting, and will inevitably
need to be replaced. Had they been properly maintained, it is at least possible that they would not need to be replaced at all.
If I am understanding this issue correctly I think I will be proposing that we launch a campaign to apply pressure to wherever is required to ensure that leaseholders are not charged for improvements from which they do not benefit.
If we don't pay for kitchens we don't have installed, why are we paying for windows we don't have installed: the principle seems exactly the same, and the distinction between inside and outside rather specious?
At what point would you consider that a failure to maintain on the part of the council constitutes actionable negligence? Is it possible that leaseholders who lose out under these circumstances could sue the council for damages?

Here's the response I got from FIRST Call:

Dear Mr Mier
Thank you for your email asking about the background to leasehold service charges, in particular the landlords ability to recover monies for window replacement in your circumstances.
The starting point for service charge liability, and for repairs responsibility, is the lease. All properties sold under a long lease are sold with a contract that sets out the rights and responsibilities of the leaseholder and the freeholder.
Typically the contract, i.e. the lease, defines what is “demised” to the leaseholder for the lease period, and will usually include the internal parts of the flat and any services that are exclusive to it. It will then go on to set out who is responsible for the structure, exterior and common parts of the block, including the window frames. These areas are not included in the “demised” area. In public sector leases these areas remain the responsibility of the freeholder. Public sector leases are constructed in this way because they are sold under specific legislation that sets out how repairing responsibilities, among other things, are to be dealt with. In the private sector leases can be more diverse as there is no specific legislation that governs how they are to be constructed.
Because the window frames are part of the freeholder’s responsibility, and are not demised to the leaseholder, it is usually necessary to seek permission to make any alterations, and the freeholder will usually refuse any request. If permission was given for you to replace your windows, the Council should have advised you about the service charge implications.
Leaseholders are responsible for contributing towards windows in exactly the same way that they are responsible for contributing towards external brickwork, the roof or the external gutters and down pipes. The lease does not look at the impact of the work on individual properties, rather it defines all of the windows as the responsibility of the freeholder as part of the block and therefore a proportion of the cost is the responsibility of the leaseholders.
The position of work carried out to kitchens and bathrooms is quite different. Kitchens and bathrooms form part of the demise of the property. They are either the responsibility of the leaseholder, or of the Council or RSL as landlord to the tenanted properties. Since they do not form part of the structure, exterior or common parts of the block, work to tenanted properties is not service charged to leaseholders, but is paid for from rents.
You will see then that the freeholders are entitled under the terms of the lease to charge you for the work carried out to the windows of the block. They may decide to waive the charges, but they are certainly not obliged to do so. In general the Council and RSLs will only agree to waive the charge where they are able to recover all of the leasehold costs from the other leaseholders or are proposing to meet that cost from reserves. Tower Hamlet leases usually provide for leaseholders to be charged a fair proportion of the costs, rather than a fixed percentage, and it may be that the RSL will rely on this to split the leasehold costs between the leaseholders whose windows are being replaced. However it would not be unknown for those leaseholders to dispute the proportioning of overhead and preliminary costs such as site accommodation and scaffolding. These costs are not reduced by there being fewer windows replaced, however leaseholders would be contributing a higher percentage than they would if all of the windows were replaced.
With regard to your point concerning the lack of maintenance in the past, this is a contractual issue. The freeholder is obliged to maintain the windows and is in breach of its contractual responsibility where it does not do so. The most reliable route in these circumstances is to apply for an order to require the freeholder to comply with its lease obligations. The point that you make regarding increased costs through lack of past maintenance would need to be made on the facts, and would best be made to the Leasehold Valuation Tribunal
I hope that the above discussion is helpful to you and would be happy to discus or clarify any of the points above.


Carla Blair
First Call

I checked my lease, and discovered that I did own my window frames, so I sent this message to FIRST Call:

Dear Mike

Thanks for your reply.

It was good to hear THCH's position on this at the meeting yesterday. Nevertheless, I think the basis of Peter's argument is mistaken, at any rate as far as my own lease is convcerned. I don't suppose my lease is unique, nor that all leases on the estate are the same, but it is the only one I can refer to.

In the first schedule, describing the demised premises, the flat is described as including:

... "(a): The internal plaster coverings and plaster work of the walls bounding the flat, and the doors and door frames and window frames fitted in such walls (other than the external surfaces of such doors door frames and window frames) and the glass fitted in such window frames."

This clearly puts the windows and their frames in much the same category as the other internal elements, leaving the lessor (LBTH/THCH) responsible directly only for the external surfaces of these items.

There would therefore be no case for recharging any part of the cost of upgrading the windows of a block (apart from external surfaces) to any leaseholder. Nor could the landlord insist on upgrading the windows of leaseholders under normal circumstances.

If an individual leaseholder chooses to take advantage of buying into window replacement then an individual charge would arise.

It is to be presumed that if the maintenance of the external surfaces is not carried out, resulting in damage to the property of the lessee - for example to the rotting of window frames - then the lessor carries full responsibility for this, and could in priciple be sued for damages.

It is difficult to see that the costs of such repairs could or should be borne by the lessees in any way, and the cost of repair and/or renovation of windows and their frames, where damage has been cause by a failure to maintain the external surfaces, would be a liability of the lessor, presumably transferred from LBTH to THCH.

In other words, leaseholders who have this clause in their contracts and whose window frames have decayed because the council has not maintained the outer surfaces should have this damage repaired free of cost to them.

There would, I suppose, be some sort of question about who should pay for the scaffolding under these circumstances. ....

I'd be interested in your comments

Best wihes


Mike

At the next meeting of the ESG, Peter Exton of THCH announced that THCH would not make this kind of charge, regardless of the exact wording of anyone's lease
So we got a result stright away.

Here's the next mail from FIRST Call, which clarifies the legal issues yet more:

Dear Mike,
Thanks for your e mail message regarding your lease.
It is unusual for public sector leases to demise the window frames, particularly where they exclude the external finish. However from the lease extract that you quoted, it seems that this is the case with your lease, and in fact with some others that have been made available to me. Not all of Tower Hamlet’s leases are worded in this way I would add.
As you say, the window frames are not part of the block in your lease. In sold properties with these lease terms, the frames are not for the landlord to replace and replacement of other windows in the block cannot be included in your service charge. Individual agreements can of course be made outside of the lease, and I would expect in these circumstances that the landlord would charge the full individual cost of any replacement including a fair proportion of the scaffold costs.
The repairing obligations certainly put the freeholder in a difficult position where the external finish has not been maintained and this has undermined the structure of the window frames. It also raises difficulties in circumstances where the frames themselves are not in sound enough condition for the freeholder to apply a paint finish.
The lease that I have seen sets out the various responsibilities regarding maintenance. As far as the window frames are concerned the responsibility of the lessee is set out in clause 3 of the lease that I have seen. There are two areas that are relevant. Para (4) sets out the lessees obligation to repair decorate and make good all defects in the demised premises within two months of notice having been given by the landlord. Para (5) requires that the leaseholder makes no alterations to the demised premises without the written consent of the landlord.
Clause 5 sets out the lessor’s or landlord’s obligations. Para (5) details the repairing obligation, and includes all areas of the block that are not included in this or any other demise or let or intended for letting. In particular the lessor is responsible for painting, as often as he deems necessary, any interior parts of the building that are usually painted other than those parts included in this or any other demise.
As you can see there is a means within the lease of ensuring that frames are maintained by the leaseholder, and an obligation on the lessor to paint them, albeit without any definite timescales. It seems that a large degree of co-operation would be required between the landlord and leaseholder, which is unrealistic to expect in these circumstances. I don’t know what view a tribunal would take of this.
I hope that this information is helpful to you.
Please contact me if you require any further clarification.

Carla Blair
First Call