The Court of Appeal
were very respectful isn’t it time for the insurers to finally deal with me?
I managed to actually speak with Gemma last Friday by dialing 141 before her direct number. Then I sent this email... She had told me that all the letters have been passed on to the correct people.. So the insurers do know my Barrister and I are waiting their response!
To
Aug 26 at
4:36 PM
Dear Gemma,
As agreed could you forward to me the
contact I will be dealing with directly at the building insurers.
This is now a damages on damages
claim, as the court of appeal said I was covered for the structure.
As I said I have no truck with One
Housing Group and I would like to take on the insurers directly.
All the best have a lovely bank
holiday.
Jo Flores
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
Mob: 07916 325037
Community Interest Company
HAVING TAKEN
ADVICE ONCE I COULD AFFORD IT…
To Solicitor
04/18/15 at
1:52 PM
Dear REDACTED,
Thank you for the legal advice.
Having had a think about it, the
advice is in two parts, one about the Court of Appeal judgement and the other
on the insurance policy.
On the insurance policy, there are
two things you say that need further clarification from me.
1) General starting point is that mere noting of your interest on a
policy (as distinct from your being joint insured) does not give you a right to
claim under that policy
2) Also, even where a loss payee is entitled to be paid out, that
entitlement to be paid might not arise unless a claim is first made by the
insured party.
Clarification of point 1. 'Noted interest' as stated by the
insurance broker FARR PLC means;
02 September 2005
Ms Jo Gavin
104 Cromer Street
London
WC1H8BZ
Dear Sirs
Community Housing Association Limited
Property Stock Policy Number: UKU/FARR/2005/274
Property Interest at: Any property insured under the
above Policy
Following your recent request, we enclose the Summary of Cover.
With regret it is not usually possible
to note individual interests, due to the number of properties insured. We are however pleased to confirm that your interest is automatically noted by the following
Clause which applies to this Property Stock Policy.
"The interest of the owners,
leaseholders, mortgagees or other interested parties of each individual property insured by this Policy is noted, the nature
and extent of such interest to be disclosed in the event of loss."
Buildings Sums
Insured are not specified for individual properties, as each are covered for full rebuilding costs following total
loss, under the terms of the Policy.
Please note that
this document has been prepared to meet the specific requirements of our client
and is supplied to you at their request. It has not been prepared for and may
not meet your own
requirements. You should, therefore take steps as you consider necessary to
satisfy yourselves that your own requirements have been met.
Any further
documentation or detailed information will incur an administration charge of £50.00, which we require in advance.
We trust the above is in order.
Yours faithfully
H
0
Marie Livings (Mrs)
Local Rate Dial: 0845 129 8037 E-Mail:
m.livings@farrplc.co.uk
Clarification of point 2. In brief
the property claim forms sent to the insurer BY THE landlord, after I filled it
out.
Evidence of
the claim having been made…2005
PROPERTY CLAIM FORM
Name of
Housing Association: Community Housing
Association
Your Name: Ms Jo Gavin.................
Policy
Number: UKU/FARR/2005/273
Loss
Address: 104 Cromer Street, London,
.................
.................
..... Postcode: WC1 H 8BZ.................
Telephone Number: 0207 278 4404.................
Are you: Leaseholder
Date and
time of loss giving rise to this claim: Sept
04 to August 05
I have read section12 on page
7,accidental damage to pipes, which covers CHA. Page 10 regarding the reduction
in market value and the delays in carrying out the repair work, which also
covers CHA. Page 11 section 2. Flood, which also covers CHA. Page 12, loss or
damage caused by the policy holder or employees, covers CHA. Page 13 pollution
or contamination covered by the policy, covers CHA, also stated on page 15. Of
course it does state that the conditions that apply to the policy cover on page
18 are that CHA are to keep their property in a good state of repair or any
defects must be made good as soon as possible taking necessary precautions to
prevent loss or damage. Obviously this has clearly not been observed by CHA
therefore if this claim is void due to that I would expect you to specifically
state that in your decision on this claim to me. I shall therefore take legal
action against the company and will expect you as my insurers to pay the legal
expenses in doing so. Page 17, denial of access can also apply with the
interference to business. Page 23 states that the policyholder should not
admit, reject or negotiate any claim without your written consent. That you may
take control in the defence or settlement of any claim on our behalf. That you may take legal action to recover any expense from others
( ie: CHA ) covered by this policy. I look forward to your advice as my
building insurance company as to how to recover my losses.
PROPERTY CLAIM FORM
Loss
Address: 106-108 Cromer Street, London
.................
.................
..... Postcode: WC1 H 8BZ.................
Telephone Number: 07916 326 511.................
Are you: Leaseholder
Looking back, more than a year ago we entered a
commercial premise that had no flooring, no proper heating, no ventilation and
was not safe to open according to regulations. We have spent a lot of time and
money dealing with a decent refurbishing of the place, lost a lot of time and
associated potential business in reporting and chasing up the repair of two
major leaks which delayed us on a massive scale, and we are still left in a
situation where the health & safety basics need to be put in place.
On that last point we do not know how
long these will take to fix and consequently how much in time and business this
will cost us. If the landlord is prepared to carry out the works then we will
only claim for the additional loss of our time, rent and business rates.
. I have read section12 on page
7,accidental damage to pipes, which covers CHA.
Page 10
regarding the reduction in market value and the delays in carrying out the
repair work, which also covers CHA.
Page 11
section 2. Flood, which also covers CHA.
Page 12, loss
or damage caused by the policy holder or employees, covers CHA.
Page 13
pollution or contamination covered by the policy, covers CHA, also stated on
page 15.
Of course it
does state that the conditions that apply to the policy cover on page 18 are
that CHA are to keep their property in a good state of repair or any defects
must be made good as soon as possible taking necessary precautions to prevent
loss or damage. Obviously this has clearly not been observed by CHA therefore
if this claim is void due to that I would expect you to specifically state that
in your decision on this claim to me. I shall therefore take legal action
against the company and will expect you as my insurers to pay the legal
expenses in doing so.
Page 17,
denial of access can also apply with the interference to business.
Page 23 states
that the policyholder should not admit, reject or negotiate any claim without
your written consent.
So
I suppose firstly I am not a tenant I am a leaseholder and secondly according
to my building insurance policy I am to be treated as if I had separately
insured and in brief this is my cover too. Alongside the CoA clarification that
the structure was insured.
"the repair of the structure of
the building is catered for through the provisions of clause 7(2) [obligation to insure]"
FARR PROPERTY INSURANCE
FOR REGISTERED SOCIAL LANDLORDS
RENTED STOCK POLICY SCHEDULE
Effective Date Policy
Number Property Insured
Policyholder The
Business
Other Interests
30 April 2005 UKU/FARR/2005/273
Any residential property (or commercial property where
required) in respect of which the Company has accepted the risk. The terms of the Policy apply
separately to each property as though
each had been insured by a separate Policy
Community
Housing Association Limited &/or leaseholder &/or part owner of any property insured
hereunder
The
ownership (freehold or leasehold)
or management of residential property (or commercial property where required) and all
other activities of Registered Social Landlords
The interests of the freeholder
and the head lessee of the property where required (if they are not the
Policyholder), the owner or lessee
of each property and the mortgagees of any of them are deemed to be noted
Period of
Insurance From 30 April 2005
To
29 April 2006 (both dates inclusive)
Annual Cost
Included in Programme Cost
Section (not operative unless
Sums Insured or Limits of Indemnity shown)
The basis of cover is 'All Risks'
The basis of cover is 'All Risks'
Buildings
Rented
Commercial
Rented
Commercial
Contents
Playgrounds
Playgrounds
3. Property Owners
Liability
Excess - Rented
General Claims
Subsidence,
Landslip and Heave
Property
Owners' Liability
Excess
- Commercial
General Claims
Subsidence, Landslip and
Heave
Commercial
Property
Offices shops community centres and
other buildings in connection with The
Business of the Policyholder which We have been notified of and accepted the risk
I don't know if that alters anything
but it has been my contention throughout that I was insured for the structure
and the Court of Appeal gives that to me, I think?
Best Wishes
Jo
spaceshift...
in association with Scarlet Maguire Gallery
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
Mob: 07916 325037
www.spaceshift.co.uk
www.scarletmaguire.com
www.onepercent4art.com
www.onepercent4art.com
I then took some further advice on
these insurance issues from another partner at a top London law firm and she
said that since the Court of Appeal judgment was only decided within the last
few years, that that was
the only point I would have known that there was a lawful claim! So
having only recently been able to afford advice and with the claim still being
within 3 years of my knowledge of the outstanding claim and the fact the claim
has already been made by the landlord through the property claim form in 2006
the claim remains outstanding.
After
then further telephone advice and clarification by my solicitor a letter was
written by my now appointed barrister to the housing association to forward to
the insurers;
He
took this line based on the advice I paid for (although it is further down the
blog to read in full)…
In
Brief…
I have recently taken legal advice
and have been told that in the Court of Appeal Judgment on 25th May 2013 where
it states in paragraph 42 in such absolute terms that "the repair of the
structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]" and
added that "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 ..." It now seems to me I
need to assert or recover any of the contractual benefits of the policy which I
might be entitled to limited to damage to property.
The reason I appointed a barrister is because I sent this to
the Housing Association and was ignored.
Dear One Housing Group,
You failed to pursue the two
insurance claims of ventilation at 106 & a floor at 104 that you knew about
in a proper way. You the landlord had an obligation to insure the building
against a specific set of insured risks. To pursue an insurance claim where the
building becomes damaged, by one of those insured risks. You failed to pursue
the claim that you knew about in a proper way. Subject to time, re-litigating
etc I am re-visiting whether you, the landlord fulfilled its obligations to
pursue the insurance claim.
I am using the law of; Vural Ltd v Security Archives as my main case law.
That case is about harassment;
insurance payments were delayed by the landlord, to put the tenant out of
business, so that the landlord could evict the tenant.
Here is an email from Jan Luba QC
specializing in Landlords & Tenants law (shortened for relevance);
From: Jan Luba QC <janl@gclaw.co.uk>
To: scarletmaguire@yahoo.com; jo@spaceshift.co.uk
Sent: Tuesday, 14 August 2012, 10:37
Subject: YOUR APPEAL
To: scarletmaguire@yahoo.com; jo@spaceshift.co.uk
Sent: Tuesday, 14 August 2012, 10:37
Subject: YOUR APPEAL
Dear Jo,
It seems to me that in
so far as it is the determination of a complaint that the insurers (UKGI(I)Ltd)
agreed to meet the legal costs of their insured (the landlords) in the
litigation, the FSO was right to decline jurisdiction. That was a matter
between that insured party and their insurers.
But equally, it would
seem to me that the FSO has jurisdiction to investigate a compliant that the
insurers (UKGI(I)Ltd) refused to meet the legal costs of another of their
insured (the tenants) in that litigation. In any event the FSO must have
jurisdiction to investigate a compliant that the insurers (UKGI(I)Ltd)
refused to meet the full claims of their insured (the tenants) arising from
loss consequent on flooding etc. I do not know if you have made any such
complaint.
Jan
JAN LUBA QC
57-60 Lincoln's Inn Fields
London WC2A 3LJ
DX: 34 Chancery Lane
Direct dial number: 0207 993 7794
Direct fax number: 0207 269 0794
London WC2A 3LJ
DX: 34 Chancery Lane
Direct dial number: 0207 993 7794
Direct fax number: 0207 269 0794
This email
advice was requested in relation to the Financial Services Ombudsman but I am
using the last part in relation to outstanding claims regarding the structure
of both shops since the Court of Appeal findings in May 2013 and their
relevance to the two outstanding insured, structural material damage, claims.
In August
2008 this email (shortened for relevance) was sent to us from the landlord
From: Monique Jamera
Sent: 12 August 2008 17:13
To: 'scarletmaguire@yahoo.com'
Subject: RE: RE: leaks at 106-108 Cromer Street - Building Regulations and Health & Safety
Sent: 12 August 2008 17:13
To: 'scarletmaguire@yahoo.com'
Subject: RE: RE: leaks at 106-108 Cromer Street - Building Regulations and Health & Safety
Hi Chantal
I note your comments
about the ventilation and would draw your attention to the clause in your lease
5 (14). The responsibility of complying with Health and Safety
legislation is the tenant’s. In any event I do not believe the premises
do not comply and doubt whether the insertion of air vents will solve all the
problems
If you disagree with
our analysis then your option as you say to legal recourse is always there.
Regards,
Monique Jamera
Commercial Property
Officer
Tel: 020 7428
5592
Mob: 07515 598
515
Here are a
few more references to us, asking for the repair of the structure, since 2005
in the property claim form & throughout;
Paragraph sent from
Bircham Dyson Bell on the 7th Jan 2009
As discussed
yesterday, in order for me to convey your concerns about the current state of
the property, it would assist if you could prepare a short e-mail setting out a
bullet point list of the defects which you say are outstanding to both
properties and which are preventing you from trading. I can then present
this list to my client and the insurance companies.
Also here is another
email from the landlord referring to Mathew Greenland the insurance company
broker on 8th May 2008;
Hi Jo
I've been in touch
with Matthew from Farr Insurance (who I have copied into this e-mail) who
has been on annual leave since we last spoke. I've asked him for an
update on this claim and he has advised me that he will get back to me once he
reviewed all communications since he has been away. As you are aware we
can not make arrangements for repairs until the insurers have accepted the
claim.
I hope to hear from
Matthew later today if not tomorrow and will inform you accordingly.
Also later in an email
which I have on disclosure Matthew asks not only for photo's which the
landlords surveyor took of the damage to the floor at shop 104 which he says he
has asked for since Feb 2008 but he also asked if a 'cessure of rent' claim has
been put in and if not why not
Here is the
quote from worldwide expert in damp Mike Parrett after a 4-stage survey of our
premises with regards to the ventilation in 09.
13.7
"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."
And further
as clarified (and that being when yourselves & I were first made aware) in
by Lord Justice Patten on 25th May 2013 at the Court of Appeal.
paragraph 42 said in absolute terms
that "the repair of the structure of the building is catered for through
the provisions of clause 7(2) [obligation to
insure]" and it added that "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
...".
paragraph 43 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"
paragraph 38, what they say is that
"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, in my view,
implies that the landlord has an obligation to use reasonable effort to pursue
an insurance claim.
Since
the repair to the structure was made in March 2012, 18 months after the
premises were taken off us, subject to permission to appeal, (see attached
photo’s) and the premises are still not let now in 2015 this indicates ongoing
material damage for which claims are still outstanding.
I am
re-visiting if there is anything you can do with the insurers to speed up the
outstanding claims for material damage that you made in the property claim
forms in 2005, in the light that your own liability has been established and in
view of your duty as established in the Court of Appeal in May 2013 to chase up
our outstanding insurance claims namely the ventilation at 106 & the floor
at 104 and any reasonable offer of settlement due to the insurance delays and
consequential losses.
If this can
be done outside of the courts this would be preferable as reasonable people.
Kind
Regards
Ms Jo
Flores
spaceshift...
in association with Scarlet Maguire Gallery
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
Mob: 07916 325037
www.spaceshift.co.uk
www.scarletmaguire.com
www.onepercent4art.com
www.onepercent4art.com
Once I appointed a barrister taking more time he got this
reply;
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