Not admitting or agreeing to service charge

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    Not admitting or agreeing to service charge

    Hi all,

    A very quick question,

    I want to pay my service charge and then take the freeholder to the FTT. Can someone give me some advice on what wording I should use in my email to the freeholder so as not to admit or to agree to the service charges?

    I was simply going to write "I will pay the service charge, however, I do not agree or admit to the service charges."

    Is that sufficient?

    Thanks




    #2
    Nothing should be necessary as the legislation says that paying does not constitute an admission that it was payable.

    Comment


      #3
      "... nor should my payment be construed in any way as constituting my agreement that the charges levied are correctly calculated according to the lease."

      You are not admitting or otherwise to anything

      You could mention that you plan to take the matter to FTT. Make sure your payment can be proven otherwise if you lose at FTT you can be in trouble.

      Comment


        #4
        Originally posted by leaseholder64 View Post
        Nothing should be necessary as the legislation says that paying does not constitute an admission that it was payable.
        Indeed but that may not apply to administration charges. I can't see any disadvantage to payment under protest anyway.

        I suppose also that if the tenant is not wishing to pay because he has not been served properly or with statements of rights etc, payment might be taken as indicating that he received a demand at all -- where in fact he might simply be guessing an amount or taking it from a neighbour or paying it based on an E-mail he received or an invoice sent to an incorrect address.

        Finally payment under protest might not have anything to do with the calculation of the charge, but due to an accountancy issue (lessee might claim he has paid already, or that his past payments have not been taken into account, or that sinking funds have been misappropriated). That aspect would not really be for the FTT, but would come into a County Court claim if he were to be pursued following the hearing.

        Comment


          #5
          Copies of any letters, or emails, that you have which state that you disagree with charges can be used as evidence that payment wasn't an admission that the amounts demanded were payable/reasonable.

          The wording of anything sent at the time of payment isn't particularly important - as long as it makes it clear that the charges are disputed and that payment is not an acceptance that payment is required.

          Comment


            #6
            I would pay what you consider to be reasonable and no more. I would issue instructions to the freeholder that payments may be accepted only for the stated purpose. I would explain clearly which items you dispute and ask the freeholder to reduce the charges to a reasonable level. I would withhold any service charge items which you are satisfied are unreasonable, My reasons are (1) whoever brings a case to the FTT has the burden of proof so leave the freeholder to bring a case for unpaid items and (2) there is case law which states that a leaseholder may not challenge items if he has been paying them regularly.

            If you decide to pay in full, you should still make it clear which items you are challenging and ask the freeholder to reduce the charges. If you are unable to agree with the freeholder, you should invite the freeholder to suggest an alternative dispute resolution service before applying to the FTT

            Comment


              #7
              Originally posted by eagle2 View Post
              I would pay what you consider to be reasonable and no more. I would issue instructions to the freeholder that payments may be accepted only for the stated purpose. I would explain clearly which items you dispute and ask the freeholder to reduce the charges to a reasonable level. I would withhold any service charge items which you are satisfied are unreasonable, My reasons are (1) whoever brings a case to the FTT has the burden of proof so leave the freeholder to bring a case for unpaid items
              The OP plans to involve FTT. Partially paying is never a good idea under any circumstances unless OP is more than 100% sure that the amounts requested are not payable and that the FTT will agree on every aspect. That is not the way it should be but it is the reality.

              It has nothing to do with burden of proof - it has to do with costs, which can be life changing.

              Comment


                #8
                The FTT sets a high threshold level before it awards costs to a party, someone has to act unreasonably before costs will be awarded. Unlike a county court, costs do not follow the event. If a leaseholder offers to pay reasonable sums and has valid grounds for withholding amounts, the FTT is unlikely to award costs even if it rules against the leaseholder. The burden of proof is an important consideration, it lies with whoever brings the application and it is much more difficult for a leaseholder to prove that a service charge is unreasonable when full documentation has probably not been supplied to him/her,

                Comment


                  #9
                  IMO, the FTT should at least be more willing to award the application costs and hearing fee to a party that wins the bulk of their case (as well as something towards the cost of photocopying/printing, and posting, the paperwork required for hearing bundles).
                  With even these costs rarely awarded it can cost a leaseholder who knows that they are right several hundred pounds to make an application.- even when freeholder, or their managing agent, were unreasonable not to have removed charges in the first place.

                  Comment


                    #10
                    The system is grossly unfair and the rogue freeholders and management companies rely on the fact that the majority of leaseholders will not wish to spend considerable time and expense challenging the charges. At the same time, they use the service charge funds to pay for the costs of defending any case brought against them, so it costs them nothing,

                    Comment


                      #11
                      Returning to the original question, you can protect yourself my making an offer of payment in writing "without prejudice save as to costs".

                      Comment

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