Get in touch with Leasehold Lawyer

As well as blogging about my views on various leasehold issues, news and developments I am keen to hear from you with your questions and concerns on any area of residential landlord and tenant law. I will endeavour to answer and publish as many as possible.

To submit a question, either leave a comment below or email me at chris.alexander@salaw.com

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26 Responses to Get in touch with Leasehold Lawyer

  1. Jane Artenhouse says:

    Hi, do you happen to know which parts of the Civil Procedure Rules or Protocols apply in an LVT case for the appointment of a manager (under section 24 of the Landlord and Tenant Act 1987)?
    Many Thanks, Jane Artenhouse.

    • Hi Jane,

      The Civil Procedure Rules do not aply to LVT proceedings as such, the LVT operates its own fairly loose procedural rules depending upon the type of application it is dealing with.

      The purpose of the pre-action protocols is essentially to encourage parties to settle disputes without going to Court. As the LVT is not “Court” the protocols do not apply and as there are very limited cost sanctions in LVT cases there is not a great cost incentive to follow a pre-action protocol in any event.

      If considering applying to appoint a manager, then if you wanted to you could set out the conduct which gives rise to the basis of the application in a letter asking the current manager to cede control. However, I do not see that there is a great benefit in doing so as this type of appraoch rarely works.

      You can find the necessary forms to make you application here: http://www.justice.gov.uk/global/forms/hmcts/tribunals/residential-property/index.htm

      I would of course be happy to help!

  2. Jennifer Greenwood says:

    Good Evening here is a challenge for you that our local committee have had much confusion over!
    In a tripartite lease between the head leaseholder, the sub leaseholders and a named commercial management company, who is the ‘client’ as per Part 2 of The Service Charge Residential Management Code? If the ‘client’ is the head leaseholder, should there be a terms of engagement contract between the head leaseholder and the manager? and if so, do the recognised tenants’ association have the right to see it? and if not, is there a less formal kind of agreement that should be in place along side the lease? Thank you for any help much appreciated.

    • Dear Jenniefer,

      I think I can help but there seem to me to be two possible answers based upon how the lease is constructured:

      1. Tenants control the manegement company

      If I assume that you and the committee are shareholders in (some of you being directors as well) and effectively run the management company and that it is the management conmpany who administers the repair and maintenance obligations at the building then the client will be the management company as it will be that entity who is appointing the managing agent. There will need to be an agreement between the managament company (as client) and the managing agent.

      2. Tenants do not control the management company

      This would be unusual but it sounds from your description that this is the situation. If a named commercial management company has been made a party to the lease then I would expect that it is obliged to undertake the repair and maintenance obligations at the block, although it should not have been granted an interest in the land itself. If this is the case, there would be no need for seperate terms of engagement with either the head leaseholder or the sub-leaseholders as the contractual obligations of the management company should be enforcable by either or both of you under the provisions of the lease (if the covenants in the lease are adequately drafted).

      So in terms of who is the client, each leaseholder is likely to be the client on the basis that there is no separate agreement with the management company as you are the parties who will want to rely upon the performance of the management company’s obligations. On that basis there would not be anything for the recognised tenants association to see as there would be no separate agreement.

      To say much more I think I would have to see the lease. If you are able to scan and send me a copy to chris.alexander@salaw.com then I should be able to give you a more definitive answer.

  3. Gabi MacEwan says:

    Hi Chris,
    The freeholder/manager of the building where I own my flat does not respond to requests to carry out repairs and maintenance of the communal areas or leaks from the flat he owns that damage both these and my own property. Environmental Health have issued Notices of Improvement for the most urgent matters and he is charging me for his ‘meetings and correspondence’ with them. Is this legal?
    Gabi

    • Dear Gabi,

      Thanks for your message.

      As I understand it the issues are that you have been charged for the landlords costs of dealing with the enforcement action that you instigated against him and defective repairs. The simple answer is that there is a statutory cap on what a landlord can charge you for services under the lease. This means that you are only liable to pay those costs which have been reasonably incurred.

      As a general proposition, the cost of repairs which failed to resolve an issue could be recoverable from you if they were reasonably incurred. However, if those repairs were exacerbated or caused by historic issues of disrepair then that can provide a basis for contesting all or part of those costs. Futrther, my initial view without seeing the invoices, accounts or lease is that you would be entitled to contest the element of the service charges relating to the Environmental Health matters on the basis that they were only necessary because of a breach of covenant on the part of the landlord.

      In terms of failure to carry out repairs, depending upon the repairing obligations in the lease it may be possible to use court proceedings to compel the landlord to take action and pursue a damages claim for any losses you have suffered owing to the disrepair.

      In order to provide you with any proper advice I would need to see the accounts, invoices, lease, photos and any relevant correspondence. The only way to force a resolution to a dispute would be to issue court/LVT proceedings for a determination if a compromise cannot be negotiated.

      Please let me know if I can be of further assistance.

      Chris

      • Gabi MacEwan says:

        Thank you for your time and attention Chris.
        I have a copy of the lease of course but no access to accounts or invoices regarding management or maintenance…the freeholder just types out a list of things he wants money for and how much. I understand I have a right to see documentary evidence for the sums in question, but suspect that given his history and my deteriorating health this may in practice be very difficult. The service charges he is demanding, legitimate and reasonable or not, are payable within 28 days and I am considering withholding those which are in question but am not sure how I stand legally on this.
        Gabi

      • Dear Gabi,

        Without seeing the documents I can’t really meaningfully advise. However, as a practical measure a well thought out deduction can be an effective means of placing the burden upon your landlord to take action (rather than it resting iwth you). If the landlord then sought to pursue you for these arrears you could ask for a determination of your service charge liability at the LVT and the landlord would have to come forward with the documents that you do not have. That said, once a dispute has arisen you will find it more difficult if you come to sell the property as the landlord is likely to use that as an opportunity to reverse the burden and demand that everything that he/she says is owed is paid as a precondition to cooperating in the sale. While there are things that you can do about this, it does rather place you back in the same situation that you are in now!

        I hope that is of some assistance!

        Chris

  4. Stan Walker says:

    I am in dispute with the Church of England over service charges in respect to the cost of maintaining a private access road which also serves three business premises.
    I purchase some land in Dec 2009 to build a house and its nearing completion, in March 2011 the manging agent sent me a 14 day on demand for 25% of £1400. I challenged this on the basis of high cost and apportionment.
    We couldn’t reach agreement so I paid £250 without prejudice.
    In July this year they sent me a 14 day on demand for 25% of c£48000 with a budget quotation attached to renew the road surface and again I disputed it on the same basis as the above. The landlord is threatening to take me to court to recover the debt.
    The reason for the delay is due to my efforts to meet with senior members of the clergy to resolve the matter. All to no avail they wouldn’t meet me.
    The lease is residential with a “fair proportion” payment clause and in the event of a dispute the landlord will be the final arbiter.
    How would you suggest I proceed?
    Regards
    Stan Walker

  5. Dear Stan,

    Thanks for your question. I would really need to see the documents to see how your payment obligations are triggered. It would seem to me that in the circumstances you could challenge whether you were being charged a fair proportion but whether you can avail yourself of the benefits of a section 20 consultation or a section 19 reasonableness assessment depends upon how these rights were granted.

    I would be happy to assist further.

    Chris

  6. Stan Walker says:

    Thanks Chris,
    just a couple of points firstly would it matter if the lease was for the land to build a house rather than for the house its self ie does the Act differentiate in respect of a land lease which has a specific requirement to build one house which is now built.

    I know it is difficult to assess but could you please give me some indication of the cost of presenting a case might be?

    Regards and best wishes.

    Stan

  7. Stephen Marck says:

    Dear Chris

    I wondered if you might be able to offer my wife and I some advice on our efforts to have the owner of the other half of our converted house, agree to and to the full extent of, carrying out essential, external repairs, needed to the entire property, valued at £20k plus which under the terms of both our leases, we are each liable to shared 50% of the cost. The works have already been ratified by a surveyor, yet the owner of the other property does not agree to the findings.

    This is a dispute that has been going on for nearly three years, with the other owner trying every trick in the book to either delay the work and or trying to pay as little as possible. The solicitor we employed over a year ago (not a leasehold specialist) has not been 100% successful in making sure that the other owner complied with the terms of the lease. however, the work did finally get agreed after the other owner finally went to a solicitor as well, only for our builder to pull out due to harassment by the other owner and his father(a surveyor), whom he hide’s behind.

    Having already spent around £10k on solicitors bills, we will soon have no money to pay for our half of the work, and loathe to spend more.

    We have enquired through our solicitor about forfeiture of the owners lease if he does not comply, and also contact his mortgager to see if they would pay his share and add the e amount to his mortgage. Yet our solicitor has not really been able to advise us enough on either of these things.

    We also understand, that councils can an enforcement order of property owners in situations like this. Is this correct, or does this only apply to council tenanted properties?

    finally, this has caused us a great deal of stress and anxiety and still do not see any light at the end of the tunnel.

    Any help or advice you can give would be very much appreciated.

    kind regards

    Mr & Mrs Marck

    • Dear Mr and Mrs Marck,

      The first thing that I would need to see if a copy of the lease and the freehold and leasehold titles for the properties that comprise the development. I
      can then advise you on the correct way to approach the matter.

      Forfeiture for non-payment of service charges requires either an admission on the part of the defaultong party or a determination by the LVT. further, if you co-own the freehold with them, you may need an order under the Trusts of Land and Appointment of Trustees Act 1996 in order to exercise those powers.

      I would be very happy to advise further and I know it is always regrettable when you instruct a professional only to have to instruct someone else when you are dissatisfied with the outcome. Please contact me directly on chris.alexander@salaw.com or 01727 798000 to discuss further.

      Kind regards

      Chris Alexander

  8. Stephen Marck says:

    Hello Chris

    Thanks for the comments.

    Firstly, There is a separate Freeholder, and both ourselves and the other owner have the same lease. We each pay a yearly charge for ground rent. However, under the terms of the lease both owners are responsible for the upkeep of the entire property costs split 50/50. after twoyers of personal contact and in the last year through solicitors we finally managed to get the other owner to agree and a contract was signed with a builder. however, the other owners father caused a lot of fuss and the builder pulled oout at the eleventh hour because of the hasstle. Now the owner will not even agree to pay 50% of the agreed amount, saying we are back at square one, although we have stated that the only thing that had changed is to find a new builder. We are holding him to everything that was agreed through and witnessed by both solicitors. However, the owner refuses to continue to use his solicitor and will only agree to use a building buddy at less cost than was agreed. Having pent agreat deal of time and money on this, we believe that Councils can force a comencement order on the other owner to comply, or our Solicitor says we can obtain a court order to have the freeholder apply for forfeture as the other owner is in breach of the lease (but at our cost).

    Short of taking the other owner to court, and with no guarantee that we would even win the case, is there anything else we can do. The other owner keeps harping on about his rights under section 20 of the Landlord/Tenant act.

    S&M Marck

    • Dear Stephen,

      If yours or your neighbours contribution to the cost of the works will exceed £250 then a section 20 consultation is likely to be necessary.

      Depending upon how the lease obligations are structured your landlord may be bound to carry out the works in any event and would then have to pursue the defaulting party for their contribution.

      Your solicitor seems to be referring to the usual reciprocal enforcement covenant and generally such provisions require you to indemnify the landlord for the costs.

      The Council are unlikely to involve itself in this sort of private dispute unless there is some statutory infringement within its jurisdiction to investigate.

      I would be happy to take a look at the lease to advise properly.

      Kind regards

      • Stephen Marck says:

        Thanks for coming back

        we don’t have a management company that look after the property, other than agents who collect our annual ground rent. As far as we are aware, there is not a section in our lease that mentions any consultation process, but only sets’s out that we are both liable for the upkeep of the property, being every four years we have to provide for any necessary structural and decorative repairs etc externally. internally it is each owners responsibility.

      • Dear Stephen,

        The consultation procedure is part of the statutory service charge regime that applies irrespective of what the lease actually says. The other point of interest in the lease is the time at which and the method of how these works are to be funded by the residents. I really would need to see the lease in order to properly set out the position.

        Kind regards

        Chris Alexander

  9. Stan Walker says:

    Morning Chris and thanks for your comments at present I’m trying to negotiate a settlement since with no disrespect I think its my cheapest option even if I have to pay a little more than anticipated.

    The opinion on whether my circumstances fall within L&T are divided some say no because I was sold the land even though there is an express term in the lease for a single residential building. Another person has said that it does apply because the dispute has arisen since the house was been built and therefore falls within.

    In trying to negotiate a fair settlement I would like to use a standard method of measure and in this regard there seems to be two options 1 use of the lane i.e. he who uses the lane most should pay the greatest proportion and 2 if the land argument is to prevail then an apportionment on the size of each plot.

    The Landlord has used a simple equal share ie 4 properties use the lane and therefore it should be 25% even though the other 3 are commercial properties and have a lot more traffic including heavy goods against us a retired couple with one car.

    When I have used the two previous methods of measure I come up with a similar value of between 5 and 7.5% of the total cost of the upgrade which is estimated to cost about £48000. So the difference between my methods and the Landlord is about £7000, a considerable amount of money.

    What do you think the most appropriate method of calculating a fair apportionment is bearing in mind the lease does not specify a method just a “Fair Proportion decided by the Landlord” ?

    Regards

    Stan

    • Dear Stan,

      You could dispute the arbitrary division of the cost by 4 as not being a fair proportion. However, you would need a convincing evidence base to show that the actual use by the other properties is far out of this proportion. With a potential saving of £7,000 I would say that there is some commercial benefit in seeking advice on the strength or weakness of your position as that could assist you in negotiations. I would be pleased to assist.

      Kind regards

      Chris Alexander

  10. Jenan says:

    Is there any legislation or case law that deals with the issue of sub-contracts as they relate to a landlords obligation to consult on works. In this case the landlord invited tenders from 4 contractors – the tender documents set out work specs but the section dealing with electrical works which constituted over half the total cost just overviewed the work (all other sections set out the actual works requiring costings breakdown) and stipulated that the work was to be carried out by a specified sub-contactor at a specified cost.

    1) the “sub-contract” for the electrical work was negotiated and price agreed with the landlord BEFORE the tender process for the main contract was started
    2) The electrical works section of the tender documents did include a statement that the contractor could nominate an alternative sub-contractor, however
    A) the tender document did not include work specs for the electrical works so it would be impossible for tender applicants to provide quotations from alternative electrical contractors
    B) the electrical work had already begun BEFORE completion of tender process and therefore the sub-contract was being performed prior to the existence of the main contract.
    3) a person working for the landlord verbally admitted that the electrical work was needed to rent out 2 new flats and it was decided that value of getting the new rental income immediately was worth risking the inability to recover cost due to failure to consult. Of course the man is denying saying this now but it was said to our solicitor

    The landlord is demanding payment of over £12,000 for refurb works, over half of which is for alleged sub-contracted electrical works but the electrical work was started BEFORE the main contract was awarded so how can this be a valid sub-contract? It is our view that the landlord failed to consult on the 30k electrical contract and then has “slipped” it in to a subsequent refurb tender as a SUB-contract in an attempt to make it appear that consultation was undertaken.

    Is there any relevant case law or statute? Do you have a view?

    • Dear Jenan,

      Thanks for your question.

      It seems to me that provided we are talking about residential property held ona long lease then these works should have been the subject of a section 20 consultation. Pre-determining who all or part of the contract works are to be awarded to is not in most cases permitted by the consultation process but can be permissable in certain circumstances. The Daejan v Benson case which I have commented upon is one example where it is said that the consultation process was defective because the landlord intimated that it had already decided to award the contract before the conslusion of the process.

      In order to form a view I would need to see the consultataion/tender documents that you have been provided with and a copy of the lease.

      Kind regards

      Chris Alexander

  11. Henri says:

    Hello,
    Is there a time limit for managing agents to apply a balancing service charge to a leaseholder account? I was told the balancing service charges belongs to the previous owner and relates to 2010, which is two years after I bought my property. They claim that because they did not receive the Notice of Transfer in 2008, I am liable to pay these arrears. They transferred the balancing service charge to my account last month (may 2013) so three years later!!!
    Any help appreciated as they are now threatening me with heavy administration charges if I do not pay immediately!

    Regards
    Henri

    • There is a time limit on making service charge demands for historic expenditure but just because the expenditure relates to a period prior to your purchase doesn’t mean that you could not be liable, it will depend upon the terms of the lease.

      In this case, it sounds like they are arguing that a failure to comply with the notice of transfer provisions is being treated as a breach of contract and the measure of damages claimed could be the ‘out of time’ service charges.

      You should check with your conveyancing solicitor to see if notice was in fact given as this may strengthen your position.

  12. Joe Buchan says:

    Although this is not a leasehold law question I feel it may be relevant for some management companies. The external part of the building requires decoration. It is a large Victorian building going up two floor from the ground. To save money on scaffolding some directors are advocating finding a painter who will work from ladders ( their own ) to do the whole building. Apart from a moral responsibility for people’s safety who would be liable in the event of the painter falling or similar accident. They say it would be the tradesman responsibility. Who is legally responsible please ?

  13. Joe Buchan says:

    I appreciate that this was not really leasehold. I sent a query to Health and Safety executive and received a comprehensive and helpful reply. Basically, it would be breaking H and S requirements and we are all responsible for H and S. I hope this will be helpful if a similar situation occurs elsewhere : I hope it wouldn’t !

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