Magenta Living (202009293)

REPORT

COMPLAINT 202009293

Magenta Living

21 May 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The resident has complained that the landlord has not refunded the cost of a repair to their boiler.

Background

2. The boiler was installed in 2008. The resident bought the property in 2013.
3. The leasehold agreement states:

“4(1)The Tenant hereby covenants with the Company that the Tenant and all persons deriving the title under him throughout the said term herby granted:

(c) Maintain uphold and keep the demised premises (other than the parts thereof comprised and referred to in paragraphs (4) and (6) of Clause 6 hereof) and (subject to Clause 6 hereof) all walls sewers drains pipes cables wires and appurtenances thereto situate within the demised premises and exclusively serving the same clean tidy and in good tenantable repair and condition”

4. Clause 6 (4) of the agreement explains how the landlord is responsible for the structure, roof, guttering, doors, and windows; gas and water pipes, drains, electric cables that are used in common with other residents; the entrances, corridors, staircases. Clause 6 (6) explains the landlord will clean and decorate the exterior and communal areas of the building.
5. As the boiler is not specifically mentioned in Clause 6 it means the boiler is the responsibility of the leaseholder to maintain and repair. The resident does not dispute that it is their responsibility to maintain and repair the boiler in general.
6. The resident has provided a headed letter and quote from a gas engineer from September 2020 and a follow up from October 2020. A signed handwritten note on the letter states that the engineer would not service the boiler until ‘issues’ are resolved. The resident reported to the landlord that the flue had not been installed correctly and that it would cost £150 for it to be rectified. They wanted the landlord to arrange this repair, or refund the cost, as they felt it was due to the landlord’s incorrect installation.
7. The resident complained to the landlord first through their MP and then directly. They complained the landlord had decided it would not refund the resident for the boiler repairs as the property (and boiler) were privately owned.
8. The landlord’s response to the MP and the October 2020 stage 1 response both explained:
   1. No concerns had been raised about the installation in the 12 years since the boiler installation.
   2. The landlord had inspected the outside of the building as this was the area it was responsible for under the lease. The inspection had not noted any concerns with the flue terminal outside the building or the surrounding area on the wall.
   3. That the tenant was the legal owner of the boiler since their property purchase in 2013.
   4. “If in the future you can present any additional evidence that the appliance installation undertaken in 2008 is a risk, we will of course review this.”
9. The landlord’s internal correspondence provides more information about what it felt it needed to justify its involvement in the repair:
   1. “need to provide us proof of [incorrect installation] in the form of a Gas Safe engineers’ report and adequate correspondence from the boiler manufacturer, relating to the year the boiler was installed and the then installation requirements.”
10. The resident escalated the complaint as they felt the landlord had not addressed their complaint that the issue stemmed from the incorrect installation, and that the landlord was responsible for the installation. They also felt the inspection was inadequate as no one had inspected inside their home to see the actual fitting of the boiler that had led to the engineer’s feedback
11. The landlord’s final response (November 2020) explained:
    1. The inspection was sufficient as it was only to check the areas of the property the landlord was responsible for (the exterior).
    2. If a gas safe registered engineer had found the boiler to be unsafe, they would have made the appliance safe or condemned it. They would also have provided a report/advisory notes explaining what had made the boiler unsafe. No such notice had been provided to the landlord and so it would not investigate further.

Assessment and findings

12. The resident believes that the landlord is responsible for the incorrect position of the flue, as it appears it was positioned when the landlord installed the boiler in 2008. Furthermore, they have highlighted the required position is set out in the original installation manual.
13. However the important point of this case is the resident’s decision to purchase the property in 2013. When purchasing the property the resident agreed to take on the property and the responsibilities as set out in the leasehold agreement. Purchasers are advised to arrange legal advice, and to arrange surveys/inspections of the property and fixtures prior to completing any purchase so that they are fully informed about what they are taking on with the purchase.
14. It is understandable that the resident would want to raise an apparent issue with the installation with the landlord, given the landlord had installed it. However when the resident made the decision to purchase the property this included the decision to take responsibility for the parts defined in the leasehold agreement.
15. The landlord did agree to inspect any ‘risk’ in the stage 1 response. It would have been helpful if it had been clearer about how it would define a ‘risk,’ particularly given the more detailed explanation in the internal email. However the stage 2 response did provide further clarity.
16. The important point in the stage 2 response is that the boiler had not been immediately repaired or condemned by the resident’s engineer, and an advisory note had not been produced. This means that the gas safe registered engineer considered the boiler safe to run, albeit that it required further works. This relates to the resident’s copy of the engineer’s headed letter stating they could not service the boiler without the flue repair. The desire to service the boiler (and any works that are required to do so) fall under the resident’s obligations in the leasehold agreement. The resident took on these obligations (including any that might stem from the landlord’s works 12 years earlier) when they decided to purchase the property.
17. It is reasonable that given the length of time that has passed, and given the responsibilities as defined in the leasehold agreement, the landlord would limit its involvement to cases where there is an explicit gas safety issue.

Determination (decision)

18. I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service there was no maladministration in the landlord’s decision to not refund the cost of the boiler repair.

Reasons

19. The boiler is the responsibility of the resident. The resident took responsibility for the boiler when they decided to purchase the property in 2013. This includes responsibility for any repairs that are required due to the previous maintenance and repair of the boiler when it was owned by the landlord. The landlord has explained that it would assist further if there was evidence of a gas safety issue, however no such evidence has been provided.