Following the purchase of their new home, the leaseholders became aware of flooding issues within the new development that impacted a number of communal areas, including corridors, the basement and a purpose-built bike shed.
The issue was raised with the managing agent who had been appointed by the developer. However, after over a year with no rectification work being undertaken by the developer, the leaseholders raised a formal complaint with the managing agent. Specifically, they were concerned that the agent had not raised the matter with the building warranty providers (as they considered it to be a structural problem), that they had failed to keep the common areas in a good state of repair and that their communications and complaint handling on the matter were simply not good enough, as there was little information provided in relation to when these issues would be put right.
To put matters right, the leaseholders asked for compensation for their distress, aggravation and inconvenience in not being able to sell the property due to the ongoing issues. They also asked for a claim to be filed with the warranty provider, an explanation as to why this had not been done and a formal written apology from the agent for their shortcomings.
The agent’s response was to refute all of the claims and to state that construction related matters had been highlighted with the developers. The agent also confirmed that the developers had admitted liability for these issues and were working to rectify them. As such, the agent felt that it had fulfilled its obligation to the leaseholders by ensuring the developers met their obligations and remedied the issues at no cost to the leaseholders.
In respect of their communications and complaints handling, the agent recognised that there had been delays in providing their response to the formal complaint but argued that most of the information had already been provided to the leaseholders in a previous email.
The adjudicator examined a significant number of email communications between the leaseholders and the agent. It was clear from the extensive evidence provided that the leaseholder had reported mould, damp and flooding issues a full 12 months before they requested the agent to report the issues to the warranty provider.
In this respect, the adjudicator noted that the warranty provider’s website stated that it was the responsibility of the agent to contact them on behalf of all the leaseholders. This had been pointed out to the agent in the complaint correspondence who had responded stating that there was no need to report the matter to the warranty provider as the developer was aware of the problems and were investigating the same. The agent had added that they couldn’t make a claim with the warranty provider and that this was for the leaseholders to do, stating further that structural issues could be raised directly with the developer.
The adjudicator also noted that whilst the agent had said that the developer had admitted responsibility for the issues and had given an undertaking to investigate and rectify the issues, the leaseholders did not appear to have been informed of this. Furthermore, six months after the leaseholders’ initial complaint letter, and eighteen months after the issues were initially raised, the leaseholders confirmed that the water ingress issues were still not fully resolved.
Regarding whether the agent had kept the common areas of the building in a good state of repair, despite requesting evidence to demonstrate the actions they took after the water ingress issues were reported to them, the agent did not respond.
Relating to the agent’s communications and subsequent complaint handling, there was no evidence to suggest that that the leaseholders had been kept up to date with progress or the agent’s discussions with the developer. Clearly this had been a source of dissatisfaction for the leaseholders as their communications to the agent had demonstrated this over a significant period of time. Furthermore, it was apparent that the agent had missed their own deadlines in responding the leaseholders’ formal complaint.
The adjudicator was critical of the agent in respect of the leaseholders’ request to contact the building warranty provider. Given how long the issues had gone on for and the information on the warranty providers website, it was not considered an unreasonable request from the leaseholders. It may have been the case that the developer was not in agreement that such a claim should be made however, the lack of communication and the lack of clarity and understanding in the responses that were provided by the agent, were a significant source of justified dissatisfaction for the leaseholders. Thereafter, the agent’s failure to demonstrate that they had kept the common areas in good repair and to communicate regularly and respond to complaints in the appropriate timescales had added to the leaseholders’ dissatisfaction.
While the adjudicator could not determine whether or not the property could have been sold, it was clear that the leaseholders had suffered avoidable distress, aggravation and inconvenience in respect of the agent’s actions and communications in dealing with their concerns. An award of £450 was made to reflect this.