Settle Group (202200981)

REPORT

COMPLAINT 202200981

Settle Group

21 March 2024 (amended at review)

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

The complaint is about the landlord’s handling of:
1. a boundary dispute.
2. a dispute involving a garden wall and canopy.
3. the subsequent complaint.

Background

The resident occupies a property under an assured tenancy that commenced on 23 March 2003. The property is a three-bedroom semi-detached house. The resident’s landlord initially was the local authority, and her tenancy was later taken over by the landlord in 2018.
The resident’s rear garden adjoins with her neighbour’s rear garden. That neighbour is a homeowner. There is an external wall between the gardens that was installed before the resident moved in. The ownership of the wall is in dispute. In 2020 the resident’s neighbour built a canopy on top of the garden wall. The resident told us that:
1. the coping stones were replaced with smaller stones resulting in water running down the wall and waterlogging her garden and damaging the wall and patio area
2. the canopy is blocking sunlight to her property.
In December 2020, the resident reported the canopy structure to her landlord. Prior to this, she had been raising enquiries with the planning department of the local authority. She explained that she thought that the planning department was part of the landlord.
The landlord liaised with the planning control department, environmental health, and the building regulations department. The landlord also carried out five inspections of the structure between 5 May 2021 and 11 March 2022.
The findings of the surveyors were that the structure was subject to the Party Wall Act 1996 and the neighbour should have given notice to the landlord. The evidence shows that the neighbour should also have sought ‘former landlord consent’ from the landlord before erecting the canopy.
In March 2022, the resident asked who was responsible for the maintenance of the wall and the landlord said it would find out. The resident raised a formal complaint on 19 April 2022 explaining that the landlord had caused her to believe that the wall was owned by the neighbour. However, the surveyor that had inspected the structure on 29 July 2021 and 16 March 2022, said that the wall was inside the resident’s boundary. She asked the landlord to accept responsibility and provide documentation to show who owned the wall.
The landlord issued its stage 1 response on 29 April 2022. It said that:
1. its records indicated that the resident’s neighbour was responsible for the boundary adjoining the property
2. there was a section in the deeds that suggested it was responsible for the southwest boundary
3. the structure was subject to the Party Wall Act 1966 and no notice of intention had been served on the landlord by the resident’s neighbour
4. it had an open dialogue with the planning department and building control teams at the local authority and it has requested that enforcement action be taken against the neighbour
5. it could not take further action as a landlord because it did not feel legal action would remedy the concerns raised.
It offered to contact the neighbour, provide mediation to the parties, and a counselling service to the resident.
The resident escalated her complaint on 4 May 2022 because she felt the landlord was responsible for the wall based on the advice the surveyors had given her at the time of their earlier inspections. The landlord had also not provided copies of the surveyors’ reports to her. She requested compensation and a further inspection to provide clarity over the issue.
On 17 May 2022 the landlord issued its final response. It said that its records indicated that it was not responsible for the boundary adjoining the resident’s property and that it had no plans to appoint a further surveyor as this was a private matter between parties. It said it did not feel further intervention or legal action would result in the outcome the resident sought. However, it would continue to try and engage the neighbour, make good her side of the wall, and install supporting timbers or a trellis for the wall.

Assessment and findings

Jurisdiction and scope

The boundary dispute

The Housing Ombudsman Scheme states in paragraph 42(g): “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”
The question of who owns the wall in the garden is not a decision that the Housing Ombudsman can make. This is a technical legal question and would fall within the jurisdiction of the Land Registry, the tribunal or a court. A determination of one of these bodies would be more reasonable and effective for all parties involved in this dispute as the finding would be based on professional evidence and be legally binding. The Ombudsman recognises, however, that this may require the landlord to make such an application.
For clarity, this investigation will be looking at how the landlord handled the resident’s query and formal complaint.

The landlord’s handling of the dispute involving a garden wall and canopy.

The resident’s neighbour built the canopy in 2020 and it is unclear from evidence exactly when this was. The resident raised the query with her landlord in December 2020.
At that time the resident told the landlord that she thought that the planning department was part of the landlord’s organisation and thought her query was being progressed by it. This was because her property was formerly owned by the local authority which is where the planning department sits. This resulted in the resident feeling she was being passed between different organisations, without knowing what each was trying to achieve.
The Ombudsman cannot fault the landlord for the resident’s mistake that the council and the landlord were one and the same.
Initially when the resident raised her query with the landlord, it explained that due to the coronavirus pandemic, it was not carrying out inspections. It asked her to provide pictures and said that it would pass the information to a manager to review. There is no evidence that the landlord provided an outcome of this review to the resident.
It would have been reasonable for the landlord to have reviewed the photographs and responded to the resident on what its conclusions or next steps were. The landlord did not do this which was a service failure. This meant from 25 January 2021 until 5 May 2021, the resident was unclear on what action the landlord intended to take.
It is noted that during this period the country was experiencing impromptu lockdowns which would have delayed the landlord’s ability to carry out in-person inspections. However, the landlord could have mitigated this by keeping in regular contact with the resident. This resulted in the resident feeling that her concerns were not being actively progressed or taken seriously and the need to chase the landlord for updates. This was also a service failure.
The evidence shows that the landlord inspected the resident’s property on:
1. 5 May 2021
2. 12 July 2021
3. 29 July 2021
4. 11 January 2022
5. 16 March 2022.
The resident spoke with the surveyor when they attended the property on 29 July 2021 and 16 March 2022. In the resident’s opinion, the surveyor offered a specialist opinion to her about the landlord having responsibility for the wall in question. The landlord later told the resident, on 24 March 2022, that it was not obliged to do anything, as the wall was owned by the homeowner. This inconsistent approach confused the resident and would have been frustrating.
However, the internal notes from the inspection on 29 July 2021 state that the inspector believed the wall belonged to the neighbour but was situated on the resident’s boundary. This meant before any subsequent structure was built, permission should have been sought from the landlord by the neighbour. In addition, the internal inspection notes from 16 March 2022, state that the neighbour believed the landlord erected the wall some years ago.
The inspection on 15 January 2022 suggested that the neighbour should have served the landlord with a party wall notice. The evidence of the internal communications of the landlord showed that it could not find such a request from the neighbour. The resident then asked the landlord what the next steps were, and the landlord explained that it was “a private matter between neighbouring properties and that it did not feel legal action would remedy the concerns raised.” This led to confusion.
In the Ombudsman’s opinion this was an early opportunity for the landlord to be clear about what the findings of the surveyors meant for the resident. It would have been fair and reasonable to have explained its stance about any ongoing liability for the maintenance of the wall.
In addition, the landlord should have told the resident which legal actions were available to it and why it did not feel this approach would remedy the resident’s concerns. As a result, the resident remained confused for an extended period, which was unreasonable. This, combined with the advice the resident said she had from two previous inspections, failed to manage her expectations effectively or clearly explain the situation.
Overall, there was maladministration in the landlord’s handling of the resident’s queries regarding the wall. This is because the landlord failed to communicate its position or its policy fully with the resident. It also failed to address the inconsistencies between it and the resident’s understanding of the garden wall.

The landlord’s response to the canopy structure

The resident explained that the issues that stemmed from the canopy were:
1. The water discharge into her garden caused waterlogging and damage to the wall and patio area.
2. That the light was blocked from entering her property and the garden.
The evidence shows that the landlord took steps to inspect the property. However, it does not show that the landlord considered how it could prevent the nuisance that arose from the water damage and the blockage of the light.
There is no evidence, for example, that the landlord considered if its property (the resident’s home) had the benefit of an easement (a right to light) which its tenant (the resident) had been benefitting from.
Additionally, there is no evidence that the landlord considered whether the neighbouring property was affected by a restrictive covenant preventing the canopy from being erected.
Lastly, it appears the landlord did not consider if it had derogated from grant by allowing the breaches of covenant and easement. In short, allowing those potential breaches removed something the resident had before, namely the natural light into her garden and home and the garden being free from waterlogging. The starting point would have been to consider the conveyance before seeking legal advice.
The landlord wrote to the neighbour in March 2022 and said that the canopy was causing a nuisance and damage to the resident’s property. It asked them to rectify this by removing the canopy windows, framing and sill or putting it back onto the other side of the boundary wall or legal action might be taken. This was appropriate.
It would have been fair and reasonable, upon the neighbour failing to engage with the landlord, for it to consider further legal recourse available to it and communicate its position to the resident. There is no evidence that this occurred, and it is clear from the subsequent approach of the landlord that there was a reliance on the local authority to enforce the specifications of the planning application as opposed to taking its own independent action.
The evidence shows that it became evident to the landlord in August 2021 that the planning department of the local authority would be granting retrospective planning permission for the canopy structure. The landlord considered whether it could deal with the matter in an alternative way, including whether formal consent from it was required for the canopy to remain. It wrote to the resident’s neighbour in March 2022 to explain that an application was required to be made to them and should have been made before the erection of the structure.
Ultimately the landlord’s position was that although ‘former landlord consent’ should have been applied for by the resident’s neighbour, if an application was made, it could not unreasonably withhold consent. The landlord later felt that because the structure had already been permitted by the planning department of the local authority it would be unreasonable to then withhold its consent.
There appears to have been no consideration of whether it would have been reasonable to withhold consent on the basis that the canopy as it was, would have affected the enjoyment of the property of any occupant and that could have affected its worth.
That said, there is no provision in Schedule 3 of the conveyance for the neighbouring property that the landlord must not unreasonably withhold consent. Paragraph 2 of Schedule 3 appears to be an absolute restriction on the neighbour’s ability to build any buildings, sheds, walls fences or structures of any kind unless the landlord agrees. Importantly, the landlord had to agree to any plans before the building went ahead. There is no evidence the landlord sought legal advice on this.
Moreover, the neighbouring property was purchased under a statutory right to buy under the Housing Act 1985. Part II of the Second Schedule of the conveyance provides that Schedule 6 paragraph 2 of the Act is implied into the deed. Paragraph 2(1)(b) of the Sixth Schedule of the Act appears to create an easement (right to light) for the benefit of the resident’s home.
As such, it is not clear why the landlord considers it does not have the right or prospects of successfully compelling the neighbour to remove the structure.
On 31 October 2021 the planning department of the local authority issued retrospective permission for the canopy. This was conditional based on the canopy being a specified height and there being rainwater goods to prevent water ingress to the resident’s boundary within a certain period.
When the date had passed for compliance with this, the landlord contacted the planning department to explain it was likely there had been a breach of the conditions for the planning approval. The evidence also shows that the landlord requested a joint visit with the planning department on four separate occasions between September 2021 to November 2021.
Whilst this was an appropriate action to take and showed that the landlord intended to actively work with the planning department to attempt to resolve the issues, there is no evidence the landlord raised formal concerns with the planning department about allowing a development to continue outside the planning consent and within the enforcement period.
It must also be noted that during the landlord’s inspections, the landlord noticed an issue with the placement of the neighbour’s gas flue and carbon dioxide expulsion to the resident’s windows. Whilst the landlord did ask the neighbour to rectify this, it appears the effect on the resident of all the issues was not fully considered.
The critical failing is that the landlord has not sought full advice.

The landlord’s handling of the resident’s complaint

The Ombudsman notes that the landlord responded to the resident’s formal complaint within the required timeframes within the Complaint Handling Code (‘the Code’) and its complaints policy. The Ombudsman considers that the landlord followed this part of its procedure for handling complaints, and this was positive.
The Code also states that: “Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.”
The root of the resident’s query and subsequent complaint is to receive confirmation of who owns the wall and is responsible for its maintenance. Both complaint responses state “our records indicate that [the neighbour] is responsible for the boundary adjoining [the resident’s property]. However, there is a section of the deeds that suggests [the landlord] is responsible for the southwest boundary.”
The Ombudsman considers that these answers did not fully resolve the issues for the resident. It appears the landlord placed responsibility on the resident’s neighbour but did not account for the specialist’s opinions about the wall being located on the resident’s boundary. As a result, it also failed to provide any certainty over the repair and maintenance responsibilities.
Although the landlord provided an extract of the deeds for the neighbour’s property and a map to the Ombudsman. Those documents suggest that the wall belongs to and is in the responsibility of the neighbour, save for the repair obligations to the southwestern boundary. However, the third schedule includes a list of restrictive covenants which prevent the resident from building any structure on the neighbouring land without the landlord’s consent. It is not clear why the landlord did not explain this and then seek legal advice.
The Code also states that “Landlords must confirm the following in writing to the resident at the completion of stage one/two: the reasons for any decisions made.”
The landlord explained in its stage 1 response that it was “unlikely there would be any options for the [landlord] to take further action against your neighbour.” It also said: “This is a private matter between neighbouring properties, and we do not feel taking legal action will remedy the concerns you have raised.” It is not clear on what basis the landlord arrived at this conclusion.
The landlord explained in its stage 2 response that it “will not be taking further action regarding the boundary dispute. [It] also confirms we have no plans to assess the wall further or appoint a party wall surveyor. This is a private matter between neighbouring properties, and we do not feel further intervention or taking legal action will result in the outcome you are looking for or remedy the concerns you have raised.”
Although the landlord explains it does not intend to take further action because the dispute is between two neighbouring properties, it fails to explain why this was the case. In addition to this, the landlord has been ambiguous and failed to explain why legal action will not result in the outcome or remedy the resident desired.
The Ombudsman expects the landlords to be clear about any reasoning it gives to residents about the issues raised. Additionally, landlords should reasonably assist residents to ensure the quiet enjoyment of the property without interference from others, including neighbours. The landlord’s failure to do this is maladministration.
Overall, the landlord’s complaint responses failed to address the reasoning behind its decision not to take further action, account for the resident’s understanding of the specialist’s advice or explain the ongoing maintenance responsibilities of the wall. This meant that the root of the complaint remained unanswered, and the resident’s main concern remained unaddressed. This is maladministration because the complaints procedure was not effective and did not come to a reasoned outcome.

Determination

In accordance with paragraph 52 of the Scheme, there has been maladministration in the way the landlord handled the resident’s query about the boundary dispute involving a garden wall and canopy.
In accordance with paragraph 52 of the Scheme, there has been maladministration in the way the landlord handled the resident’s complaint.

Orders

The Ombudsman orders the landlord to take the following action, no later than 12 January 2024:
1. Obtain legal advice from an independent lawyer on the following:
  1. Who owns and is responsible for the wall based on the ‘T’ marks in the conveyance – to confirm this is the neighbour.
  2. Whether the neighbour is in breach of the easements and restrictive covenants in the conveyance, or in breach of the Party Wall Act and, additionally, whether the landlord would have prospects of successfully obtaining an injunction to have the neighbour remove the structure.
2. The landlord must share the outcome of this advice with the resident and the Ombudsman. Whilst this advice would attract legal privilege – the landlord will be able to summarise the advice it receives to set out its position.
3. The landlord must then set out what action it intends to take.
4. Pay the resident compensation of £550, in recognition of the failures identified in this report. This is made up of:
  1. £50 for the delay in providing the resident with the surveyor’s report.
  2. £200 for the failure to communicate its position or policy fully with the resident which led to inconsistencies and confusion for the resident.
  3. £300 for the failure of the complaint response to address all the issues raised by the resident.
5. Provide evidence of compliance with these orders to this Service.