Wednesday, 6 April 2016
Friday, 1 April 2016
|Breach of Part F Ventilation - Not fit for human habitation - No air in the premises!|
|It's one thing installing a glass pavement but owners make sure you SEAL it properly around the edges or you could face a nightmare in leaks!|
|You probably stand on many of these Luxcrete pavements per day without ever noticing the name!|
Mick Sweeney CEO
100 Chalk Farm Road,
17th March 2016
Dear Mr. Sweeney,
RE: MS MARY JOSOFAR VALDIVIESO FORTUNO FLORES
My name is REDACTED, a barrister authorised by the Bar Standards Board to provide representation on a Direct Access Basis.
I have been instructed to represent Ms Mary Josofar, Valdivieso Fortuno Flores, abbreviated in the Court of Appeal in May 2013 to Ms Jo Flores, who was originally Ms Mary Moss, Chairperson of New NAYPIC / Youth Parliament and then was known to you from 2000 as the commercial tenant of both premises 104 & 106-108 Cromer Street WC1H 8BZ as Ms Jo Gavin in the case of; Gavin and Cracy v Community Housing Association (2008-2013). I write this letter on my client’s behalf in relation to outstanding matters concerning this case.
Ms Jo Flores (and later her then business partner from 2004-10) became a tenant of two commercial properties 104 & 106-108 Cromer Street from 2000 to 2008 when the landlord she says trespassed/forfeited both properties for a disputed non-payment of rent, after the tenants had suffered a series of disrepair at both premises for four years, including no ventilation breaching part F building regulations (not fit for human habitation) and several leaks including waste pipes bursting into the premises for which the tenants believed they had an unreasonably long delay and still outstanding claim on the insurance, so that they could have use of both premises, as established in court in July 2010 at a ten days trail and then in a permission to Appeal hearing in Dec 2012 and finally culminating with the outcome in May 2013 that the structure was insured.
After the Court of Appeal hearing in May 2013 having represented herself she went on to the Supreme Court and then she proceeded to the European Court.
Ms Jo Flores was left without a business at a crucial time in her children’s rights and art career and more importantly without any means to pay for a lawyer. She has therefore been slow in obtaining advice for this reason but now has done so.
My client wrote to you in May and in June 2014 but you failed to respond. I hope that you can now answer her questions from the legal advice taken, as the claim finishes three years after any decision is made, so that deadline is the 25th May 2016.
In the Court of Appeal Judgment on 25th May 2013 it states in paragraph 42 in absolute terms
"The repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]"
"in the face of these provisions there is no reason based on necessity or business efficacy to alter the balance of the scheme by imposing an implied covenant to repair on the landlord ..."
At Paragraph  to "the existence of what the parties obviously intended should be a comprehensive scheme for the repair of both the demised and the retained parts of the building"
At Paragraph , "disrepair of the structure ... constitutes an insurable risk and the landlord is required under the terms of the leases of 104 and 106 to apply the insurance monies in making good the damage and disrepair"
The Court's basic point is that in appropriate circumstances the landlord has an obligation to pursue the insurance route. Looking at clause 7(2) of the lease, if the premises are damaged by an insured risk the landlord must (to paraphrase) with reasonable speed use all relevant insurance monies received from the insurers to repair/reinstate the premises. This in turn implies that the landlord has an obligation to use reasonable effort to pursue an insurance claim.
So it seems Ms Flores needs to assert or recover any of the contractual benefits of the policy, which she might be entitled to limited to damage to property.
The said insurers, UKU underwritten by Lloyds Ireland & joint excess liability insurers Royal & Sun Alliance did not fix the structure in both premises104, namely the floor from Jan 2008 to Sept 2010 & 106-108, namely the lack of ventilation breaching part F building regulations from April 2004-Sept 2010.
It was stated in the Court of Appeal in May 2013, that the structure was covered by insurance despite the landlords failed attempt to say at one point that it was the responsibility of the tenant.
Ms Flores took advice in 2014 from a partner at a law firm specialising in insurance and they advised that since the Court of Appeal judgment was only decided within the last few years, it was only at that stage she would have known there was a lawful claim.
Ms Flores is acting now from her first knowledge of the lawful claim subject to third party insurance claims law, noted interest and that the insurance was clearly taken out by you the landlord for the benefit of the commercial tenants as established in the Court of Appeal.
The lawful claim is within 3 years of the tenants knowledge, although as Ms Flores has stated throughout, and you may agree, the claim has already been made, by you the landlord through the property claim form in 2005 and so, as such still remains outstanding.
It is submitted that you therefore have a duty to chase up the claim, even if you have to use your current insurers to do so, in line with that duty.
In a report from 2009 by expert Mr Mike Parrett in conducting a 4-stage survey of 106-108 premises with regards to the ventilation, he states
"Additional static ventilation to the main cellar room to business unit 2 should be provided to comply with the requirements of the approved document Part F of the current Building regulations."
Since the repair to the structural ventilation was made in 2012 this indicates there was throughout ongoing structural material damage for which the material claims, are still outstanding.
I am re-visiting if there is anything you can do for Ms Flores with the insurers to speed up the outstanding claims for material damage that you made in the property claim forms in 2005.
In light that your own liability not to repair was also established but in view of your duty as established in the Court of Appeal in May 2013 to chase up any outstanding insurance claims, namely the absent ventilation at 106-108 & the floor at 104 and any reasonable offer of settlement due to the insurance delays and consequential losses, I request that you now perform your duty and let my client know the outcome.
Given the ongoing delay in relation to this matter and the fact my client has written to you previously in relation to the same issues, I request that you respond within the next 14 days so that a resolution can be achieved without the expense of further proceedings.