Missing leaseholder neglecting property - case for s146 action or abandonment?

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    #16
    Thanks so much for your advice again, I will start a trace straight away

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      #17
      The courts an tribunals have complete discretion as to whether and to what extent they grant relief from forfeiture. You cannot say anything is automatic, just that actual forfeiture only ever used if the leaseholder fails to cooperate in doing something more favourable to them.

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        #18
        A leaseholder would be given the opportunity to avoid forfeiture and the evidence is that she has not received a notice.

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          #19
          Hi xsandrag

          You cannot just apply for forfeiture. First you need to be clear of the details of the breaches you allege. From your comments you appear to only possess limited information about the condition of the premises.

          You will need to apply to the FTT for a determination the lease is in breach unless the leaseholder has admitted same. Assuming the court agree with you, the next step is to issue a Section 146 Notice which will provide the leaseholder with the opportunity to rectify the breaches. Check the lease for 146 terms.

          As others suggested, try tracing the leaseholder. Have you checked the electoral register? Call utilities companies to find out if power is still connected and when was the last change of account holder? Check register of deaths too? Call the Local Authority, Council Tax Dept, explain the situation and see what you can find out. As freeholder, while organizations will not provide personal data they will usually provide some information (e.g. confirm someone paying council tax).

          If the Land Registry hold no other addresses for the leaseholder you will probably be able to serve documents at the property address.

          Did you issue demands for ground rent for the last 4 years?

          Irrespective of lease covenants you cannot force entry without a court order.

          Further, if you are planning to go the 146 route you need to be mindful of your actions if you do trace the leaseholder not to waive your right of forfeiture.

          I would suggest discussing the situation with a solicitor - definitely best advice.

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            #20
            Hi vmart, many thanks for your message.

            Yes I agree that to apply for forfeiture I need to be clear on the nature of the alleged breaches. This is why I was wondering if the leasholder, if found and notified, denies access, then the breach would have to be the lack of provision of reasonable access?

            Then if the court orders access I imagine a further breach of repair would arise, from what I saw through the letterbox and from the garden. There is a very high pile of post which looks untouched, also broken objects and clutter around the entrance, damp on the walls. I'm a little worried about squatters though a neighbour said to me there haven't been any to his knowledge. The upper flat told me around 3 years ago everything is fine downstairs so I'm not inclined to believe them.

            A tracing agent is currently looking for her which will take 2 days, so I will hopefully know a lot more then!
            I have checked public telephone directories so far but no other registers yet. I cannot find marriage/death certificates online open to the public,but I'm looking at the moment. I have been informed I cannot access information on whether council tax has been paid. I think I have just found the utility company that serves the property so I will look into that.

            Yes I demanded ground rent, though most recently signed for letters were returned so I sent a section 166 notice by normal post. That demanded all but the rent for 2018. The earlier years following my father's death in 2013 until 2017 it was demanded informally. It's taken a while to understand formalities.

            I agree I think I have to seek legal advice on how to best communicate with the tenant to protect my rights. I'm saying 'my' to simplify things, it's actually in my mother's name at the moment, we're trying to figure if to transfer to my name or not if I were to buy the leasehold.

            Thanks again for your advice!


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              #21
              If you claim forfeiture you would need to stop demanding ground rent and service charges.

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                #22
                Yes I read about that a bit late! So I'm not sure if I've already waived my right, but I didn't include 2018 in the last demand.

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                  #23
                  Hi xsandrag

                  NOTE: eagle2's point above and my penultimate point above: Further, if you are planning to go the 146 route you need to be mindful of your actions if you do trace the leaseholder not to waive your right of forfeiture.

                  However, if you decide not to pursue forfeiture you will need to re-demand ground rent formally for the years you demanded rent informally (you can go back 6 years). Ignorance of the process is no excuse (unfortunately!). Send ground rent demands and other post normal post to the address (I assume you checked with the Land Registry if there are any other addresses for the leaseholder) of the property and obtain a certificate of posting. You could send two copies of any documents one 'singed for' and one normal post obtaining a cert.of posting. Unless the leaseholder notified you of another service address you are entitled to serve documents at the property. (Personally, at the moment, I would not demand ground rent or service charges).

                  Did you check electoral register? I would try council again. State you are the owner of the building and there are concerns about the property being abandoned - then try and persuade them to provide some details. At least, is council tax being collected for the property? With the right approach you will be surprised what companies/orgs will tell you while not breaching GDPR.

                  Google on Registrar of Deaths for the area and telephone them (good start). I would also report your concerns to the fire brigade and environmental health.

                  Another issue you need to consider is insurance. I assume you insure the building and collect service charges for same. Make sure you let the insurance company know the situation and disclose, in writing, any other relevant points about the building which might impact insurance.

                  How many flats are there in the building?





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                    #24
                    I doubt you waived your right at the moment. You don't even know yet the extent of condition breaches. Google on difference between 'one-off breaches' and 'continuing breaches'. I would not over worry about this now.

                    I would continue with the steps you are taking and speak with a solicitor (soonest) for provisional advice. Remember in forums like LLZ folk are only expressing personal opinions and might not know what they are talking about!!

                    Comment


                      #25
                      You might like to read the sticky at the top of this forum. Lots of good advice for freeholders and leaseholders. Also see the LEASE website.

                      Comment


                        #26
                        Okay! Thanks so much everyone! I'm trying my best to understand things, what I've learnt so far is don't stop and think you've understood something as if you keep researching there's a whole new aspect to be considered!

                        With ground rent the Section 166 notice I sent included years 2014-2018, so I'm not sure if that counts as a formal demand for all those years. But I'll stop demanding for now.
                        I actually tried to report to building control but they said unless the walls are actually leaning there's no obvious structural danger. I will try environmental health and fire brigade. And registrar of deaths but I have a feeling she might have married as I found someone under her name in the town her last cheque in 2015 was from, and only registered there 4 years, that this year took the surname of a person also living in the property. But the telephone number is not accessible anywhere. If she takes a different surname this will no doubt complicate things.

                        According to the lease, the leaseholder is responsible for arranging insurance, another thing to check up on! But may be best to wait with that as well until I receive advice.

                        There are 2 flats in the property, ground floor and first floor


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                          #27
                          A valid section 166 notice cannot be for multiple years, as it must say on what date the rent was due, and that presumably means at least one date per year.

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                            #28
                            Ah okay, I treated the rent as an accumulating figure. I will send out separate notices in that case once the access/repair breach is dealt with.

                            Comment


                              #29
                              At least you accept that there is a lot to learn and you say that you are seeking legal advice, so you are on the right track. People on here genuinely try to point you in the right direction and hopefully you should have narrowed down the areas to discuss with your adviser.

                              Is there a mortgage on the ground floor flat? If so, the mortgagee may be willing to assist you and it would certainly wish to avoid forfeiture.

                              You haven’t stated that there is any urgent need to gain access to the ground floor flat.

                              You state that the leaseholder is denying you access but that is not the case, she is unaware that you require access. She appears to be in the wrong by not letting you have a new contact address but you do not know if she has any extenuating circumstances.

                              If there is nothing specific in the lease regarding notice, you should give “reasonable” notice. What is considered “reasonable” is open to debate. I know a managing agent who allows 3 months for a leaseholder to comply with a (non emergency) request for access and would only consider applying for a court order if access was not allowed during that time.

                              You state that you need access to the flat for maintenance or there may be serious damage but at the moment, you do not know. You would need to gain access and then serve the leaseholder with a schedule of works required, preferably prepared by a Chartered Surveyor and then you would need to allow the leaseholder a reasonable time to complete those works.

                              You state that ground rent is unpaid but you do not appear to have demanded it correctly so it is not payable at this time. How much is the ground rent?

                              Are there any service charges payable? If you do not arrange the insurance, presumably there are few if any service charges.

                              Do you have any rights under the lease to require proof of insurance cover taken out by the leaseholder?

                              At the moment, I cannot see that you have any grounds for claiming forfeiture. The idea of a sudden windfall may seem appealing but in practice, it does not happen. I suggest that you study the previous decisions made by the First Tier Tribunal.

                              Comment


                                #30
                                hi eagle2,

                                Thanks for your message.

                                I'm unaware of there being any mortgage on the ground floor flat. It is difficult to say if there is an urgent need for access, if there is damp, and wood rotting, or rodents, then there could be an urgency, the property hasn't been inspected for at least 10 years.
                                And it's part of our responsibility to do so, especially if there's any internal damage that is affecting the common parts.

                                I attempted to give notice via a signed for letter at the end of November which was returned, and then at the start of December, by certified post. She won't have received that notice but yes, I will wait to see if there are any extreme circumstances.

                                She has been found, in the midlands by the tracing agent. In a different location to her bank address which is strange. I am interested in buying the leasehold, applying for forfeiture would only be a last resort if the property has been abandoned or access is refused once notice is given. If I was to buy I would need to do so before Brexit due to part of my inheritance being outside UK. So there is some urgency there! I am thinking of going there in person, after I speak with an advisor, and make an offer. I won't try to force a sale, it may happen to be a good solution for both parties. Then I think it'll be best to hand her a written notice and offer in person as well, which I can prepare with a solicitor.

                                If no sale then I will concentrate on access. Then the rest will follow most likely and it will be a matter of ensuring repairs are funded and there is compensation for any damage.

                                The ground rent is low, so that's not a huge deal but I will request it once the position with the sale is clear. We have many past copies of insurance bills and there is a requirement for the lesee to produce proof of policies if required.






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