Boundary wall collapsed-neighbour querying responsibility.

[Eastisup]

Hello folks, just wondered if anyone has come across anything like this in the past and could shed any light.
A few weeks ago, an ancient stone wall that separates mine and neighbours properties fell down. Fortunately my neighbours are fabulous and lovely people and we have worked out a suitable remedy sensibly using a local builder who can repair and rebuild the wall.
Here is where it get tricky. my property is a first floor converted flat and I have a lovely neighbour downstairs. 2 thirds of the wall is on my leasehold boundary, one third is downstairs leasehold boundary.
I am also the freeholder of the plot of the 2 flats.
The lovely neighbours whose garden the wall fell into are on the third side of the whole wall.
we decided to split the cost 3 ways;
garden neighbours pay half the total cost, i pay 2/3 of the other half of the cost, downstairs neighbour pays 1/3 of the remaining half of the cost.
downstairs neighbour has queried whether I , as the freeholder, should pay her 1/3 as well; meaning the garden neighbours and I pay for it all as we are the freeholders.
As the freeholder, downstairs neighbour pays me ground rent but not service charges. I think this cost of repair would usually be covered by a service charge but I am wondering if anyone has ever come across anything similar or any conveyancing solicitors out there might have any input!
Any thoughts gratefully received!

I would agree that the freeholder is normally liable, but then recharges it as per the proportion outlined in the lease....however, I'm not an expert on leasehold

Does the lease suggest the freeholder is responsible? What about communal costs usually, such as buildings insurance and maintenance?

Thank for the input LIZS andMarieg10
The building insurance is shared equally between the 2 flats but doesn't cover boundary, just the physical building.
Going to check the leasehold details and ask downstairs neighbour to check theirs as there are no communal costs.

The insurance should cover any structure on the property. Not just what is lived in. For precisely this reason! Walls are expensive structures and if they are retaining walls too, they cost £thousands to repair. You must insure all structures on the property as the freeholder. What would you have done if it had injured someone? You need insurance for it.

I wasn't necessarily thinking insurance would include it but that it may establish how ongoing communal costs are shared between freeholder and leaseholder. In the first instance I would have thought it is between you as freeholder and ndn to do the work, then the split of cost to fh to be apportioned separately between the flats if that is in the lease or normal for other bills.

You bring the freeholder doesn’t absolve her of all the costs of maintenance etc!

She is liable to pay her share for repairs and renewals for any common parts. Usually including the roof. Anything not covered by insurance. And for her share of buildings insurance. Ground rent is just that, a charge for the use of the land her flat sits on.

Usually when it is an outside company, like in a block of flats, the freeholder will pay and then recharge the leaseholder. But when I lived in a small conversion we were all owners of the freehold and ran it through a company of which we were all directors.

You could avoid this sort of nonsense from her if she became a freeholder too. Buying the freehold is a pretty common thing to do.

But surely the freeholder owns the wall and should have insured it? Especially in a conversion? Otherwise, as is being discovered, liability for it damaging a person by toppling over on them is going to be a massive problem, as it appears is rebuilding it. It’s hardly a big deal to insure a wall!

Who insures the whole building? The freeholder or the leaseholders? Or no one?

Most property damage claims against an old collapsed retaining wall would be rejected by an insurer for being gradual deterioration. Even if the collapse happened during a storm with water build up behind, the storm would likely be seen as the final straw for a gradually deteriorating wall, rather than the event that caused the collapse. You'd have to get a surveyor that was willing to state that age had not caused deterioration in order to stand a chance. Even then, any rebuild would likely be deemed to improve the wall (betterment) and therefore you'd have to contribute towards the rebuild cost. No idea about the liability side of any claim though.

You need to read the lease! Most (not all) leases will state it is the freeholders responsibility but then the costs for the work are dealt with via the service charge and this is then apportioned out according to the lease.

You say you don't have any service charges (so I assume you are doing this on an "as required" basis). If the leases allow it you need to start charging service charges for maintenance of the property. Build up a reserve fund so when things like this happen, you have the funds already. All properties require some kind of maintenance (even if its just cleaning the gutters etc..)

Being a freeholder has its responsibilities, I think you need to read up on what is required, read the leases for both properties (which more than likely will be identical), and see what you can and can't charge for.

whose wall is it? it should be on the deeds or check the land registry this should show a little T shape inside the garden from the boundary to show whose owns/has responsibility for it

It is perfectly possible to include a wall on an insurance policy. Like everything else you insure, it should be in good condition for an insurer to honour an insurance claim. No insurer will take on a wall that’s already subsiding or damaged by tree roots but you could have done something about it and then insured it. Children are killed by collapsing walls and you should take the structural properties of walls seriously.

It’s a sad fact that people don’t maintain walls or build them properly and then wail when they fail. When the wall is repaired, ensure it’s structurally safe and insure it. You do need to clarify and understand your role as a freeholder too. This would help greatly should some other issue arise.

Gosh, thank you all for the input, pretty much all along the lines of my thinking. Going forward, I am going to consider setting up a service charge agreement for us both as leaseholders or splitting and selling the freehold and will take some appropriate advice. Many thanks all once again.

Yes, get some specialist legal advice, OP.

A shared freehold should be a very simple matter.

When I was in a converted house with several flats the freehold was owned by a management company, but the only directors and owners of the Mgt Co were the owners of the flats. We agreed an annual contribution which covered the insurance and routine maintenance, and paid major costs between us as required and agreed. There were 5 flats.

But with only 2 flats it could be simpler.

It's definitely freeholder's responsibility

When I had a leasehold flat the freeholder (mgmt company) arranged for and did any work outside but then the cost went back to the leasehold flats split as a proportion of what was in the lease - so there were 8 flats and it was the percentage that was specified in the lease - it was a bit odd as all flats were same size but wasn't in 8ths though overall totalled all of the works.

I would read your legal documents re freehold and check things with a lawyer if not sure.