The flat above ours is going to cost us our sale - help!

[AbyCat]

We've accepted an offer on our flat, due to exchange this week. The buyer knew there was a slight damp problem in the flat, but we've had surveyors in who have said that the damp is coming from a leak in one of the two flats above so it isn't as serious as rising damp, and we've made all efforts possible to contact the owners to get the problem sorted out. Both flats are empty at the moment and have been for a while apparently.

One owner has just refused to contact us, no reply to our emails or letters or calls. The other one made two arrangements to meet with our surveyor to look at his flat, and didn't turn up to either of them. Now he isn't replying to any emails either. This situation has been going on since January.

Now our buyer is saying that unless we get confirmation of where the leak is coming from which is causing the damp, and a guarantee that work will be done to fix it, he will pull out of the sale. (Fair enough I would say). How on earth can I get the owners of these flats to take responsibility for their properties? Can you get a solicitors letter for example to force them to let the managing agents of the block to get into the property?

The managing agents of the block of flats and the estate agents have all also made numerous attempts to contact these owners to no avail. Any advice would be wonderful - we are so worried now that the buyer will pull out, and the flat will be repossessed as we can't afford the mortgage on it any more (hence selling it). Sorry for the long post!

Depends on the terms of your lease. I would have thought if the managing agent /freeholder is responsible for the fabric of the building there should be an access clause.

There is almost always an access clause in the lease, but exercising it can be tricky - it needs to be preceded by solicitors letters etc.

Are the flats let? Does the building have trace and access covered under the buildings insurance? As a managing agent I would usually give the lessee a chance to sort it themselves, and if they didn't (and it turned out to be their problem), I'd send out a plumber and recharge it to their account.

Alternatively, can you go up through your ceiling? And you're sure it's not coming from the soil stack or gutter work?

You could possibly have a civil claim against them for not upholding the terms of their lease, in the event that your sale does fall through.

People can be a bit dim unfortunately, they don't realise that they won't always know if there's a water leak as pipework runs underneath the floor.

Thank you both - I'll check the lease re an access clause. AFAIK both flats are empty, not let.

Going up through the ceiling is a bit of a last resort, its a basement flat and seems to have been hewn out of rock! Two separate surveyors are saying it's definitely coming from the flat above, not from the gutters or anything like that - we had to get it all double checked as being a basement we were afraid that it was coming from the soil/rising damp.

The managing agents just aren't really helping at all - they say if the owners don't reply to letters, they can't do anything. All flats are leasehold but with a share of the freehold, so no one freeholder to go to unfortunately. I just wondered if there was any right for a managing agent to force access to empty flats - I guess that would be the access clause? But that is going to probably take weeks to arrange isn't it?

Unfortunately, yes.

If you're all shareholders in the freehold company, do you have any acting directors you could contact?

Now that's a good idea - thank you, will get onto that right away.