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thanks very much for such a thorough reply!
the position that we are in is that we and one other flat are willing to pay for the work (external decoration) and it is the other owner who is threatening legal action.
if we went ahead with the work, would he have any comeback on us? the deed says that we are "required to decorate the exterior of the building in such a manner as shall be agreed by the majority...". do I understand this correctly that the 3rd owner (25%) doesn't need to agree to the work? his windows are in poor state so we have said we'd skip his frames if he didn't contribute so as not to be responsible for the condition (all the brickwork will be painted). Frankly we would paint his frames for the sake of an easy life.
the costs you mention are quite chilling! the decoration costs are much less than that. if he did take us to court, would we pay fees as individuals or would the freeholder have to pay (meaning we'd pay 50%)? is there any likelihood that he could have costs awarded so that we'd have to cover his share?
sorry I've come back with so many questions. I really appreciate your help so far.
dinosaur-
if we went ahead with the work, would he have any comeback on us? the deed says that we are "required to decorate the exterior of the building in such a manner as shall be agreed by the majority...". do I understand this correctly that the 3rd owner (25%) doesn't need to agree to the work?
Interesting. Usually trustees have to make decisions unanimously, but given that wording it would appear that you can make decisions about exterior decorating by majority. It's not clear whether that's a majority by share of ownership (50/25/25) of simply per flat, but either way, you've got a majority combined with the other nice flat owner. Sounds like his objections can be overruled.
if he did take us to court, would we pay fees as individuals or would the freeholder have to pay (meaning we'd pay 50%)?
Generally costs orders made against multiple parties are joint and several, so you're both/all liable for all of it, and it's up to you how to divvy it up. As for how you'd fund your own legal costs, that would depend on the wording of the leases (whether legal costs are recoverable as service charges) and the declaration of trust.
is there any likelihood that he could have costs awarded so that we'd have to cover his share?
Seems staggeringly unlikely, frankly. You're doing something you're entitled to do, and redecorating the outside of the house in which he lives for free. If he took that to court, I expect he'd end up with a very angry judge and an order for costs against him, not you.
Brommers
Catastrophically. The legal costs would almost certainly be more than the cost of the work if you get lawyers involved. I'm involved in a similar case at the moment - I act for the owners of the upstairs flat who want to make sure the building doesn't fall down, the owners of the empty downstairs flat don't seem to be that bothered. The solicitors instructing me have given the clients a cost estimate of £30-50k if it goes to trial. I think they might be a bit light on that estimate.
Section 14(2)(a) says the court can make any order ' relating to the exercise by the trustees of any of their functions ... as the court thinks fit.' Since you own the freehold jointly the freehold is, by definition, held on trust. All jointly owned land in England and Wales is held by the owners on trust for themselves. So the court has a pretty wide jurisdiction, but it has to have regard to the factors set out in section 15 of the 1996 Act.
The court couldn't, no. The First Tier Tribunal can appoint a manger to manage a building under Part II of the Landlord and Tenant Act 1987, but the manager would have to be paid for and you'd need to establish that one of the threshold grounds in section 24(2) are made out.
The easiest way to resolve it legally would probably be to invoke the Right to Manage under Chapter 1 of Part II of the Commonhold and Leasehold Reform Act 2002. You'd have to set up an RTM company, and you'd have to invite the annoying co-owner to participate, but you and the other 'normal' leaseholder would be able to outvote the third one, so between the two of you you'd be in control of management. The trouble with this route is that the resident landlord exemption in paragraph 3 of Schedule 6 of the 2002 Act might well apply, in which case the RTM provisions of the 2002 Act wouldn't apply to your property.
No easy answer, I'm afraid.