Windowframe responsibility

[stroberaver]

I'm involved with the Management Company of the small development of leasehold flats where I live, and we have the Managing Agent to provide day to day services and property management. Quite a standard set-up, I'd have thought.

Myself and some of the owners have discussed the idea of replacing window frames with upvc ones rather than spending a fortune every few years on the required full external redecoration of the existing wooden frames. However this obviously requires more money in the short term before any savings are realised from no redecoration, and as such we don't expect all owners to support any scheme that involves replacing windowframes (most of the flats are let out rather than owner-occupied, and naturally some landlords don't want to make the investment).

Therefore we need to be sure that it is the Management Company who has the responsibility for the windowframes (and with that responsibility, the authority to instigate the replacement of all windowframes in the development - we couldn't have owners opting out and a mixture of windowframe types & styles due to it being a small development and in a conservation area.

However the Managing Agent is concerned that the lease is not sufficiently watertight in assigning responsibility for the windowframes. I think it's ok, but wondered if anyone here with any expertise in this field could comment based on what I think are the relevant sections of the lease below. The lease does have some typos and grammatical errors elsewhere, which leads into question the accuracy of other sections. However I've reproduced the text below exactly. Firstly, the demised premises are defined as (details of my flat removed):

lease document said:

ALL THAT flat known as flat Number <X> shown edged red on the First Floor Plan being part of the Block and being on the First Floor thereof TOGETHER WITH the doors and windows thereof and glass in the windows and the interior faces of the ceilings up to the underside of the joists slabs or beams to which the same are affixed and the floors including the joists slabs or beams supporting the same and TOGETHER WITH all cisterns tanks drains pipes wires ducts conduits and any other Service Installations whatsoever used solely for the purpose of the Demised Premises (EXCEPTING AND RESERVING from the demise the main structural parts of the Blocks including the roof foundations and the external parts thereof)

In the definitions used in the lease document, "The Maintained Property"...

lease document said:

...means those parts of the Blocks and the Development which are more particularly described in the Second Schedule hereto the maintenance of which is the responsibility of the Management Company and to the costs of which maintenance the Lessee contributes as hereinafter appears

And the Second Schedule defines this maintained property as:

lease document said:

1. The main structural parts of the Blocks including but not by way of limitation the roofs walls foundations floors all walls bounding or within individual flats (other than non-structural walls) and window frames in the Flats and all external parts of the Blocks including fascias and ironwork thereon and external doors.

2. All Service Installations serving the Blocks or the Development as a whole so far as not maintainable by the relevant authority and not used solely for the purpose of any individual flat BUT EXCEPTING AND EXCLUDING the glass in the windows of the individual flats and interior joinery plasterwork tiling and other surfaces of walls and floors (including the joist slabs or beams supporting the same) and the ceilings up to the underside of the joist slabs or beams to which the same are affixed of the Flats and Service Installations which exclusively serve an individual flat or the entry doors of the Flats.

3. The Common Parts

4. The Service Installations (including in particular the Lessor's lighting and power circuits points and fittings) so far as the same serve the Common Parts

From this, my interpretation is that the individual owners are responsible for the glass in their windows (e.g. they have to replace a window pane if it got broken) but the Management Company holds responsibility for the frames themselves. Do you think this is correct, and do you think there is any other interpretation of the above parts of the lease?

Thanks in advance.

[Jobbo]

Your interpretation that the management company is responsible for the frames and the leaseholder for the glass looks correct based on what you've posted. But bear in mind that the lease probably restricts what you can recharge to the tenants by way of service charge (improvements are unlikely to be rechargeable, whereas maintenance and repair would be), and there are statutory restrictions and requirements. You really need to take specific legal advice, and the solicitor would need to check every lease was the same.

[nikaiyo2]

Conservation Area, UPVC windows? Are you sure that you can even do what you propose? A lot of councils have REALLY tightened up on what they will or will not allow over the last few years...

[stroberaver]

Jobbo said:

But bear in mind that the lease probably restricts what you can recharge to the tenants by way of service charge (improvements are unlikely to be rechargeable, whereas maintenance and repair would be), and there are statutory restrictions and requirements. You really need to take specific legal advice, and the solicitor would need to check every lease was the same.

Thanks for your thoughts, I don't think there's been any discussion over what can be recharged to the owners. Off the top of my head I don't recall seeing anything in the lease that would restrict what can be recharged - but if such things are possibly an issue then we'll certainly look at getting specific legal advice. What we don't want is to believe the Management Company has the right to proceed, and begin the process, only to be challenged legally by an unhappy owner who isn't willing to participate in the scheme - this would obviously become very costly.

Are there any reasons that the lease for each flat might not be the same? I had assumed they would all be identical.

[stroberaver]

nikaiyo2 said:

Conservation Area, UPVC windows? Are you sure that you can even do what you propose? A lot of councils have REALLY tightened up on what they will or will not allow over the last few years...

Yes, we've discussed it with the council's planning officers. They would tolerate upvc windows on the grounds that the new windows are sympathetic/fitting to the current design and building style (which of course we'd want anyway) and as long as they are uniform throughout the development - they won't allow a hotch-potch replacement of just some windows.

Both of which we intend to avoid by organising any window replacement scheme through the management company, if possible.

I've also found council documents reporting on the conservation area which describe the development as already having upvc windows, so who knows whether the council knows what's going on!

[nick0137]

It appears that the individual lessees own the window frames ie they have demised to them the windows as well as the glass in those windows. The management company, however, I imagine (as you haven't set out the nature of its obligations) has an obligation to maintain those window frames ie for the benefit (but also at the communal cost) of the lessees. However, it is not at all clear that that obligation to maintain gives the management company the right to remove and replace in their entirety (as opposed to repair, paint etc) the window frames that are owned by the lessees. Ordinarily, I would not expect such an obligation to maintain property owned by another to permit that property to be taken away and replaced with other property, without (at least) the consent of the owner. In any event, even if the management company can lawfully replace the windows owned by the lessees, still (I imagine) those lessees will only be liable for their share of the cost if that replacement was a proper discharge by the management company of its obligation to repair/maintain. Taking out perfectly serviceable wooden window frames and replacing them with PVC ones in order to avoid future maintenance costs is highly unlikely to fall within the proper bounds of the management company's obligation. Put shortly, I think you will probably need to get everyone onside.

[Jobbo]

stroberaver said:

Thanks for your thoughts, I don't think there's been any discussion over what can be recharged to the owners. Off the top of my head I don't recall seeing anything in the lease that would restrict what can be recharged - but if such things are possibly an issue then we'll certainly look at getting specific legal advice. What we don't want is to believe the Management Company has the right to proceed, and begin the process, only to be challenged legally by an unhappy owner who isn't willing to participate in the scheme - this would obviously become very costly.

Are there any reasons that the lease for each flat might not be the same? I had assumed they would all be identical.

You couldn't rely on the lease being silent; you'd need to find an express obligation on the tenant to pay for works which include what you are proposing. If the lease doesn't say anything, you can't recharge the cost (well, that's the position you should start from).

Don't assume anything about the leases; whoever developed it probably intended all of them to be the same, but every single flat will have been bought by somebody using different solicitors, all of whom may have asked for small detail changes which may have been accepted just to get the deal done.

[Googie]

I think your lease is ambiguous here as the windows frames are referenced as part of the structure. On that basis you will need Landlords consent via the managing agent nod which will attract a fee. I would suggest that the responsibility for the windows is cleared with the managing agent before doing any works.Personally I would retain the timber frames but whatever is done you should try for uniformity across the block as otherwise this will detract from value when you or others come to sell.

Also all new windows require to be compliant with Part L of the Building Regulations-if you use a FENSA approved installer they will deal with this for you otherwise you will have to make a Building Regs application.

Finally, if you have got the time and inclination and subject to enough resident numbers in the block-75% I think-you can form your own management committee to maintain structure etc and which will be cheaper in the long run.

[ClaphamGT3]

Based on experiences both as a surveyor and as a director of a management co for a block of flats, I would brace yourself for a world of pain.

Even if the leases permit the management co and their agents to replace the windows (and, from what you've posted, that is far from clear) at least some of the leaseholders will do absolutely anything to avoid the obligation. The obvious -and easy - one will be to lobby the local conservation officer to reject the application to replace them but, if there is any ambiguity in the leases, expect multiple legal challenges.

Oh, and is take it you do realise that uPVC windows have a finite life span such that there may be no overall cost saving, just a different cash-flow profile for maintenance costs?

[stroberaver]

Thanks for all the comments and replies, there's lots of things to take into account which none of the involved owners or Managing Agent have brought up yet. I've got a meeting with the Agents soon so will take lots of this stuff to talk through with them.

I'm fully expecting it to be a difficult process - and perhaps one that doesn't/can't get off the ground - but the wooden windows we have are pretty crap, so it's worth investigating. There's a lot of fiddly woodwork on them and the decorating bill is enormous - especially for the upper floors which requires scaffolding or a cherry picker to do the work. Plus the double glazing is wafer thin, prone to extensive condensation, and offers little in the way of noise/heat insulation, which is especially an issue with a busy road nearby. The few owner-occupiers here are all interested in upgrading the windows, most of the landlords probably will too, but we already know of at least two landlords who are dead set against it as they don't want to spend a penny more than they have to - which is their right of course, but a shame that they don't have the interests of the development at heart.

[Cyberprog]

Out of the box thought, but have you considered financing the whole thing for the landlords who won't spend a penny, at the rate that the (yearly?) repaint costs over x many years? If the owners who *want* the UPVC that badly, and it has to be all or nothing, this might be an option.

[IainT]

nikaiyo2 said:

Conservation Area, UPVC windows?

We're in a similar situation as the OP but houses rather than flats and, even if we wanted to, we have to have wooden windows and doors. Except the doors were replaced shortly after the development was completed due to poor quality wood which warped. The doors that replaced them are actually metal.... go figure!

[The Surveyor]

IainT said:

nikaiyo2 said:

Conservation Area, UPVC windows?

We're in a similar situation as the OP but houses rather than flats and, even if we wanted to, we have to have wooden windows and doors. Except the doors were replaced shortly after the development was completed due to poor quality wood which warped. The doors that replaced them are actually metal.... go figure!

Every conservation area is different and will have individual rules on what can, and can't be done. I used to live in a conservation area and there was little in wording which actually placed any restriction on external materials, it was focused on trees and the overall appearance of the area. We were allowed Upvc windows, and even allowed to replace the natural slate roof covering with tiles if we wished.

As indicated previously, the OP has a real uphill task if he doesn't have 100% sign-up from the other tenants, or the support of the owner. Good luck though.

[stroberaver]

The Surveyor said:

As indicated previously, the OP has a real uphill task if he doesn't have 100% sign-up from the other tenants, or the support of the owner. Good luck though.

Thanks, although I should point out that I'm not a tenant, I'm an owner-occupier. There are just a handful of owner-occupiers in the development (all of whom would like a window replacement program to be developed), with the vast majority being let out by (mostly absent) landlord owners. Some of the landlords are willing to pursue a replacement program as they view it as an investment in their, err, investment. One or two have already stated their opposition. The Management Company, of which I'm a director, has the authority to decide on maintenance, expenditure, budgets etc as voted upon at the AGM each year, which most people don't bother attending - but a key point raised here is whether the Management Company has any authority to adopt a program of replacing and improving the windows which may or may not be the responsibility/property of individual owners, given that they may be crap windows but are not actually defective.

We'll be obtaining specific legal advice as it relates to our lease in full, so thanks for all the pointers and things to watch out in this thread.

[Wings]

Are you a Director of the Management Company, and do you self manage rather than employ an agent to manage?

I have several leasehold rental flats, being a Director of the self management Company? I have just persuaded five other leaseholders/Directors to change the blocks crittall metal windows with uPVC windows. Future maintenance and scaffolding costs keeping the metal windows, persuaded all the leaseholders to replace windows with uPVC.

For pleasing on the eye, and to obtain consent from the Council's Planning Office, all leaseholders must agree to the change, and towards that end, a meeting with all leaseholders is a must, the same setting out in full the merits of uPVC.