Fair proportion of maintenance charge

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    Fair proportion of maintenance charge

    I know this has been covered before, but I am still unclear. My mum's lease says the following:

    To pay to the Lessor a maintenance charge being a fair proportion having
    regard to the extent to which the expenditure relates to or is for the benefit
    of the Demised Premises (such proportion in case of dispute to be fixed by
    the Lessors managing agent or accountant whose opinion shall be final)


    My mum's flat is little larger than a studio flat at 370sqft. The rest of the building is comprised of 2, 3 and even 4 bedroom flats. So my mum's is by far and away the smallest.

    Until a few months ago there was no management company and one of the other flat owners managed the property.

    My mum didn't question the £100ish she paid out each month, but I recently found out that each flat pays an equal share each month. So £100 a month may be a bit expensive for a 4 bedroom flat, but seems extortionate for a studio flat.

    So the question are:

    1. As it seems payments are normally calculated based on floor area, does my mum have a good chance of getting this re-assessed?
    2. Did the upstairs flat as the acting "Managing agent" have a right to ask for whatever they wanted EDIT: believed was fair, despite the conflict of interest, under the terms of the lease?
    3. If not, can my mum reclaim the overpayment for the 5 years of her ownership?

    The building is joint freehold, so no doubt my mum will ruffle a few feathers, but I feel given she owns the (as we have found out, terribly) converted coal store, we're not too concerned about ruffling feathers.

    #2
    Payments are not "normally" calculated based on anything, nor is it anything to do with fairness. They are calculated the way the leases says they are calculated. The lease is purchased on the basis of what it says.

    That said, if that is all your lease says then this is a bad and highly unusual lease. It may be unusual enough that it would merit taking to FTT for lease variation/clarification.

    Comment


      #3
      Thank you for the reply, below is the unredacted version (the lack of punctuation is both real and giving me a headache):

      To pay to the Lessor a maintenance charge being a fair proportion
      having regard to the extent to which the expenditure relates to or is for the
      benefit of the Demised Premises (such proportion in case of dispute to be fixed
      by the Lessors managing agent or accountant whose opinion shall be final) of
      the expenses which the Lessor shall in relation to the Property reasonably
      and properly incur in each maintenance year and which are authorised by
      the Fifth Schedule hereto (including the provision for future expenditure
      therein mentioned) the amount of such payment to be certified by the Lessor's
      managing agent or accountant acting as an expert and not as an arbitrator
      as soon as conveniently possible after the expiry of each maintenance year
      and further on the Twenty fifth day of March and the Twenty ninth day of
      September in each maintenance year to pay on account of the Lessees liability
      under this clause the sum of Two hundred and twelve pounds or one half of the
      amount of the maintenance charge for the immediately preceding maintenance
      year whichever shall be the greater PROVIDED THAT immediately upon the
      Lessor's managing agents' or accountants' certificate being given as aforesaid
      there shall be paid by the Lessee any deficiency between the amount paid by
      the Lessee on account of the maintenance charge and the maintenance charge
      so certified

      Comment


        #4
        PremiseS is in the pleural. That means that there may be expenditure which has nothing to do with the flats (e.g. Freeholder may retain part of the building). It does not mean to me that the decision is made based on how the particular repair benefits the particular flat.

        Are you sure there is nothing at all apart from that in the lease? Is this a mixed use development (e.g. shops on the ground floor).

        Comment


          #5
          That is the entirety of the service charge section. Another small section mentions ground rent.

          It is not mixed-use. It is residential only.

          The building is a mid 19th century conversion. It is shared freehold and comprises just 4 flats. In the past the garden was developed into garages and muse houses, which have long been sold off, so we share a right of way with neighbouring buildings.

          Each flat comes with an uncovered parking space included. The lease does give us a "well area" in front of the flat, which is small and comprises about 15% of the outside space. All other flats do not get any outside space in their leases. We are responsible for maintaining the "well area" no gardener etc. is provided.

          Comment


            #6
            Originally posted by eshroom View Post
            The building is a mid 19th century conversion. It is shared freehold and comprises just 4 flats. In the past the garden was developed into garages and muse houses, which have long been sold off, so we share a right of way with neighbouring buildings.
            Was the lease written before parts were sold off?

            Unfortunately the FTT might concur with the view that the lease, which you signed, gives the landlord the right to vary the proportions as they see fit. They might not agree that floor area has any relevance. Leasehold is all about giving a warm home to corruption, backhanders and self-interested decisions... and you may be on the cutting edge of that.

            Comment


              #7
              The main reason people set equal shares (even, when the lease says otherwise), is that it makes the calculation of bills easier. A clause making the split subjective is always likely to result in disputes.

              I believe there may be case law that says that clauses which give the freeholder the ultimate choice can be overridden by FTT decisions.

              Comment


                #8
                Thanks for the answers. I guess I'll start by discussing with the other shared freeholders.

                Comment

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