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

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  • Anna1985
    replied
    Hi , any update on the above? Thanks

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  • xsandrag
    replied
    Yes, greatly appreciated thank you

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  • eagle2
    replied
    It is more than confusing, it is a minefield and there is nothing wrong in admitting that you did not fully understand, you are not alone, that is why you need to seek legal advice. We can only try to warn you of the risks and try to point you in the right direction.

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  • xsandrag
    replied
    This is so confusing! Okay so I may have already waived my 'right' to forfeiture as I sent a letter expressing my mother's interest in acquiring the leasehold in December. I will write to her traced address first in that case and wait to speak with a solicitor before I send anything, thank you again for the advice

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  • eagle2
    replied
    Now that you have traced the leaseholder, I would send her by post valid demands for any amounts which she owes including the appropriate notices, a notice requesting access to her property and a request for confirmation of insurance cover. I would obtain a certificate of posting the letter from the Post Office.

    When you receive the insurance details, I would contact the insurer and ask for the freeholder’s interest to be noted on the policy and ask to be notified before the insurer allows the policy to lapse.

    I would definitely not turn up unannounced at her property with a notice in your hand and an offer to buy her property. I would allow her time to consider the correspondence and respond. I would try to speak to her, maybe by telephone if she does not contact you and enquire if she may be interested in selling the property.

    At the moment, you do not appear to have any grounds for forfeiture. I would regard the forfeiture clause as no more than a threat to be used to collect monies to which you may be entitled and as a means of recovering your costs (if the lease permits) in the event of legal action. If you ever succeed with a forfeiture claim, please come back and report the details because it would be so rare that we would all like to know how it was achieved.

    If you still wish to claim forfeiture of the lease, the steps to follow would be different to the above, you would need to establish grounds for forfeiture and you should not claim any rights under the terms of the lease eg that you are owed monies or have a right of access. Another point to consider is that by the time a claim for forfeiture is determined, it may be too late to legally demand some of the monies to which you are entitled. The sums involved in your case appear to be small but in other cases, they could accumulate to a significant amount.

    I agree that you should continue to seek legal advice.

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  • vmart
    replied
    Hello again xsandrag

    A few quick points:
    • If you make an offer to buy the lease I believe you will waive your right to forfeiture (I use the term 'right' loosely!);
    • You cannot force a sale anyway;
    • Forfeiture is not a simple or quick process, rarely achieved and should only be considered as a last resort.
    I think your best next step is to speak with a solicitor before taking further action.

    I hope it works out for you.




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  • xsandrag
    replied
    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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  • eagle2
    replied
    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.

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  • xsandrag
    replied
    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.

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  • leaseholder64
    replied
    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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  • xsandrag
    replied
    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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  • vmart
    replied
    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.

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  • vmart
    replied
    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!!

    Leave a comment:


  • vmart
    replied
    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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  • xsandrag
    replied
    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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