The phrase 'in the opinion of the Lessor' - any evidence required?

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    #76
    Originally posted by Lawcruncher View Post
    Sorry for the delay, but here is a draft letter for consideration:

    Thank you for your letter of…

    Thank you for formally confirming your client’s opinion. However, as I have said in earlier correspondence, it is implicit that the opinion has to be reasonably formed. All the residents I have spoken to (and I have spoken to almost all of them) have expressed the opinion that the dogs are no bother to anyone and that your client’s stance is unreasonable. If no one has complained about the dogs and your client’s interest is not prejudiced it is difficult to see any justification for action.

    Other flat owners have dogs and have not been sent solicitor’s letters. That suggests that your client’s motives in instructing you to write to me are motivated by considerations unrelated to good estate management.

    I am keen to settle this matter as, apart for anything else, I am finding it all very stressful. As advised, I have tried to discuss this issue with the managing agents, but they have been reluctant to engage with me. In case you are unaware of the fact, the dogs are not actually my pets, but are being fostered until a permanent home can be found for them. The difficulty I have is that if I have to return the dogs to the agency there is a possiblity that they will have to be put down, an outcome which, as I am sure you will appreciate, I am not prepared to contemplate. I shall contact the agency asking them to give rehousing the dogs top priority, though of course the holiday period is not the ideal time. My suggestion is that we see how things progress over the next three months and then review the position.
    Thanks Lawcruncher , this is great.

    I've absorbed this.

    I'm a bit wary of admitting that I find this stressful - our Freeholder is a man who's been accused of 'legal torture' by a prominent MP so I think if I show any weakness at all, he'll pounce on that. Is there an advantage to admitting this?

    I think your advice is probably quite sensible to review in three months. The concern I have is that this means that the solicitor will be writing ANOTHER letter in three months time which again will almost certainly be charged to the residents. I would really like to challenge the fact that they're doing this under S146 at all (if I'm correct in thinking this is heavy handed); at least that way if taken to Tribunal I'll have evidence that I've felt it was a frivolous use of the act.

    I would also like to continue to foster dogs in the future; though I suspect this'll become less of a problem when we have our RTM. Is that the idea of reviewing in three months?

    Sorry for all the questions. Feel free to ignore - you've already gone above and beyond.

    PS one more thing - I would like to formally deny the charge that we allow our dogs to foul (i.e. poop and leave it there without cleaning / disinfecting) the common area. Any reason not to add this denial in?

    Comment


      #77
      Letting the freeholder go for s146 forfeiture even if he loses, invites a lot of expense to be added to your service charge Benzo. I wonder how long before your neighbours complain about your dogs then?

      You had my thoughts in post #5.
      To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

      Comment


        #78
        Originally posted by Benzo View Post
        I'm a bit wary of admitting that I find this stressful - our Freeholder is a man who's been accused of 'legal torture' by a prominent MP so I think if I show any weakness at all, he'll pounce on that. Is there an advantage to admitting this?
        I was having second thoughts about that. Not following my own advice to avoid saying what you do not need to say! Leave out: "as, apart for anything else, I am finding it all very stressful."

        Originally posted by Benzo View Post
        I think your advice is probably quite sensible to review in three months. The concern I have is that this means that the solicitor will be writing ANOTHER letter in three months time which again will almost certainly be charged to the residents. I would really like to challenge the fact that they're doing this under S146 at all (if I'm correct in thinking this is heavy handed); at least that way if taken to Tribunal I'll have evidence that I've felt it was a frivolous use of the act.
        Either your are disputing the matter or you are not. They are going to be writing another letter anyway. They have asked for a proposal and you re giving one. See further my reply my JKO below.

        Originally posted by Benzo View Post
        I would also like to continue to foster dogs in the future; though I suspect this'll become less of a problem when we have our RTM. Is that the idea of reviewing in three months?
        I think that if you get this one sorted, probably better to leave taking on any more dogs until you have he RTM and everyone agrees a policy for keeping dogs. The idea of the review is (a) to give you some breathing space (b) to respond to the request for a proposal.

        Originally posted by Benzo View Post
        PS one more thing - I would like to formally deny the charge that we allow our dogs to foul (i.e. poop and leave it there without cleaning / disinfecting) the common area. Any reason not to add this denial in?
        I deliberately left that out. You do not want to be admitting you allow the dogs to foul at all.

        Comment


          #79
          Originally posted by JK0 View Post
          Letting the freeholder go for s146 forfeiture even if he loses, invites a lot of expense to be added to your service charge Benzo. I wonder how long before your neighbours complain about your dogs then?
          I was never a litigator and so cannot speak with any authority on the question, but my view is:

          Some years ago I had a discussion with leaseholdanswers about whether a landlord who loses and is ordered to pay costs can charge the costs to the service charge if the lease allows it. I am inclined to think not. That is tantamount to the landlord being able to say: "If we go to court/tribunal then you pay all the costs whether I win or lose." That has to be contrary to public policy and it ought to be the case that if the court orders that the landlord pays that the landlord pays. It can be noted that section 60 of the Arbitration Act 1996 provides that: "An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event is only valid if made after the dispute in question has arisen." You may of course have difficulty arguing that your dispute is being settled by arbitration if the lease does not contain an arbitration clause, but I think that the principle has to apply.

          Either you or Benzo may wish to raise the point in a forum frequented by litigators such as here: http://swarblaw.co.uk/viewforum.php?...810d916eaee74f

          Comment


            #80
            Thank you both. The Freeholder will certainly try to recharge the S146 costs to residents, fair or not, allowed by the lease or not. They are aware of a tribunal decision which says they cannot charge non-S146 legal costs to residents, and they have still added those non-S146 legals to our service charge (including legal costs for a discontinued RTM application, which is the responsibility of the RTM company to pay, not the residents who did not initiate it). So with an actual S146 clause in our lease, they'll certainly attempt to use it and hope they do not get challenged. This is well worth being aware of, and is something that I'm planning on challenging as part of a Tribunal application; but I do not want my dogs to be part of it.

            The issue may be on its way to being resolved in that we have had a message from a family who would like to adopt the dogs - they seem very kind, were specifically looking for a bonded pair, and have a whole house with a private garden and a dog flap. We are meeting them this week - if all goes well, they'll be in their new home by Saturday. My inclination is to send a simple message with this information and suggesting I reply substantively after the Saturday. Do you guys think this is sensible?

            And yes, I couldn't agree more on not fostering any further dogs at least until we have our RTM. I'm quite surprised by how readily they've been they're prepared to use this as a bargaining chip, but I suppose in a battle any weapon is worth reaching for.

            Comment


              #81
              Benzo - what happened in the end? Were the dogs rehomed? Did the freeholder pursue its claim for costs?

              Comment


                #82
                Originally posted by eagle2 View Post
                Benzo - what happened in the end? Were the dogs rehomed? Did the freeholder pursue its claim for costs?
                Thanks for the ask. It's broadly a happy ending. The priority - the dogs - are happy as heck. They were successfully adopted by that family up in Northampton with a large three story house and a private garden with a dog flap. They are being spoilt rotten - the eldest daughter just left home, and I think the dogs were being brought on board to fill the gap - and they're fitting in so perfectly it brings tears to my eyes when I think about it. We still get photo updates from the family and the dogs are utterly, utterly content.

                In terms of the lawyers, Lawcruncher's profound knowledge and generosity allowed me to respond intelligently to them until the dogs were safely off the property, at which point the matter was closed from their side.

                In terms of our managing agents, they waited until Christmas then invoiced me for £1200 in fees, comprised of an initial 'breach' fee, lawyers' fees, and late payment fees. Thanks to this place I could tell that the demand was not correctly formatted, so I pushed back and offered £400 as a one off, or I'd apply to Tribunal for a determination. The offer was accepted and the matter closed.

                We now have our RTM so a few minor bits aside, I no longer have to deal with that joke of a company. Very glad of it too.

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