Does anyone have experience / know how to apply for an injunction against landlord?

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  • Stacker
    replied
    Thank you flying freehold..that is the issue inconsistent policies and communals not insured and excess high, reinstatement not done for 6 years..they do what they like...

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  • flyingfreehold
    replied
    The main thing is that there is adequate cover and that is what surely should concern you. Is the policy with an"insurer of repute"? Is subsidence/heave included? What are the excesses; Is the insurer known to have excellent claims handling. Not naming names but they are not all the same, and a really good brokers will often be deputed to handle relatively small claims and know which insurers are particularly hard work on a loss.

    Are there full perils including terrorism and non-invalidation?.

    Are we covered for access and trace (which is the cost of exploratory work to find and cure a leak involving some deconstruction of the property)

    Does the policy include walls car-parks garden structures and service roads? Is the premium reasonable (and insurance rates are currently going up really quite sharply).
    Personally I really wouldn't worry about paying the premium to the designated Broker. The main thing is that cover is in place, and being held for an adequate amount.

    Pick your fights carefully and work with your freeholder in co-operation if you can.

    You can say to the freeholder when was a reinstatement valuation last carried out?

    Building costs have also rocketed, as a result of skills shortages and pressure of work has enabled contractors to push up their prices for reinstatement work.

    The costs of reinstatement really ought to be checked every few years. I have spent a lot of time in lock-down having sums insured checked with specialist surveyors who are working remotely from sets of plans photos etc and been surprised by the amounts specialist valuers have specified cover should be held for, rather more than the sum for which we had previously held cover and hence sums insured have to go up.

    You are entitled to a copy of the premium and schedule once a year without charge. Nowadays it would be sent out by email.

    Very roughly speaking, as a guide, for a top quality property owners policy, with all the bells and whistles, which are of course worth having, assuming standard construction and a claims history that is normal, a million pounds of cover is going to be somewhere in the region of fifteen hundred quid a year including premium tax. Someone will say they have found cheaper cover; but cheaper is not necessarily better. The precise location of the risk affects the rating Currently, perceived flood risk is an important criteria for the cost of cover. The figure I have mentioned is for the South East.

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  • Stacker
    replied
    Macromia I did exactly that then they took me to court for not paying

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  • Macromia
    replied
    Originally posted by Stacker View Post
    The insurance broker NOT the freeholder sent out the equests directly to the leaseholders for payment..with no summary of rights.
    In that case, if I was in your position, I would have ignored the demand completely (unless something in the lease made another course of action relevant).

    I wouldn't have paid either the broker or the freeholder because there was no valid service charge demand and therefore no payment was required.

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  • Stacker
    replied
    The insurance broker NOT the freeholder sent out the equests directly to the leaseholders for payment..with no summary of rights.

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  • Macromia
    replied
    Originally posted by Stacker View Post
    Sorry Macromia there is nothing in the LEASE that states pay a third party and its highly unusual...
    I wouldn't expect there to be anything in your lease saying that you should pay a third party (although it would be possible for leases to have requirements along these lines), and I have already said, more than once, that it wouldn't be a normal arrangement to pay parts of service charge costs to a third party (managing agents being the obvious exception).

    Originally posted by Stacker View Post
    ...even the FTT say so, they say its a breach of the landlord own covenant...
    It wouldn't be a breach of a landlords covenant unless a lease specifically says that the landlord must not ask leaseholders to pay any portion of their service charge costs to a third party.

    Originally posted by Stacker View Post
    ...paying to a third party means section 27A you have accepted the cost..that is why sneaky landlords do it...
    Yes, and again, I have already said, more than once, that this is how a tribunal is likely to treat any service charge costs that have been paid directly to a third party.

    Originally posted by Stacker View Post
    ... Also paying anyone outside a tenant landlord relationship means you have no statutory protection under any of the L&T Acts 1985 or 1987. Sorry I dont buy it...
    It will likely mean that you will be considered to have agreed to the costs (as stated previously). It is because you are considered to have accepted the charges by paying them to a third party than you lose protections, not because they are not considered to be service charges, as defined in L&T Act 1985.
    You would also be unable to challenge insurance costs if you paid your contribution to the freeholder by (for example) sending a cheque accompanied by a letter that stated that you thought the insurance that had been arranged was very reasonable and you were therefore happy to pay the sum demanded.

    Originally posted by Stacker View Post
    Macromia so how is an insurance broker or any third party going to serve a copy of the summary of tenant rights and obligations with their demand ..it makes no sense what you are saying..???
    Where do you get the idea that I would expect the insurance broker, or any third party other than a managing agent who had been appointed by the freeholder, to bill leaseholders directly?

    When you said that the leaseholders have been asked to pay their insurance costs from the service charge directly to the broker, I would take that to mean that the freeholder (or their managing agent) had sent out an invoice, and either stated on the invoice that the required amount was to be paid directly to the broker, or asked the leaseholders to do this (after previously agreeing this with the broker).
    If any service charge costs aren't demanded properly, including the summary of rights, they don't​​​​​​​ become payable - regardless of the payment arrangements that you are asked to follow.

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  • Stacker
    replied
    Macromia so how is an insurance broker or any third party going to serve a copy of the summary of tenant rights and obligations with their demand ..it makes no sense what you are saying..???

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  • Stacker
    replied
    Sorry Macromia there is nothing in the LEASE that states pay a third party and its highly unusual...even the FTT say so, they say its a breach of the landlord own covenant...paying to a third party means section 27A you have accepted the cost..that is why sneaky landlords do it...Also paying anyone outside a tenant landlord relationship means you have no statutory protection under any of the L&T Acts 1985 or 1987. Sorry I dont buy it...

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  • Macromia
    replied
    Originally posted by Stacker View Post
    Macromia if the monies are not paid through the service charge to the Lesssor then its not a service charge, paying someone else a third party where there is no contractual tenant landlord relationship means its not a service charge and there is no statutory cover under the L&T ACTs so could not take it to FTT...
    The legal definition of a service charge is given in section 18 of the Landlord and Tenant Act 1985. It says nothing about payments having to be paid to the 'landlord', only that the costs are incurred by, or on behalf of the landlord. If the lease requires the landlord to arrange insurance, and that leaseholders contribute towards that insurance, there is nothing to stop the landlord arranging that insurance and arranging for leaseholders to pay their share direct to the broker.

    Personally, like you, I would not be willing to do this and would insist on paying my share via the landlord or their managing agent, but not because doing differently would mean that it wasn't a service charge.
    The insurance should still be included on an annual service charge summary, if you receive one, even if leaseholders pay their share directly.

    Paying directly doesn't mean that you can't take the cost of insurance to a tribunal because it is not a service charge, but it does mean that a tribunal is likely to take the view that you had agreed to the cost.

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  • Stacker
    replied
    Macromia if the monies are not paid through the service charge to the Lesssor then its not a service charge, paying someone else a third party where there is no contractual tenant landlord relationship means its not a service charge and there is no statutory cover under the L&T ACTs so could not take it to FTT...

    Leave a comment:


  • Macromia
    replied
    Originally posted by Stacker View Post
    Macromia ... the lease is a contract..you cant just do what you like...pick and chose otherwise no point in having a lease!!!!
    Actually, the parties to a contract can "pick and choose" - it's just that it's usually unwise to do so.

    In this case (regarding the insurance) the lease apparently describes precisely what the insurance the freeholder is meant to arrange should cover. If the freeholder doesn't cover exactly what the lease states, and only that, he is putting himself at risk of potentially being unable to recover any of the insurance cost from leaseholders, even though the lease allows insurance costs to be collected as a part of the service charge.
    I had five years of insurance payments ruled as not payable for precisely that reason.
    On the other hand, if the freeholder can be certain that ALL leaseholders would prefer insurance that somehow differs from the strict terms of the lease, they can choose not to follow the lease - but they need to realise that, by doing so, they are at risk of being challenged (and likely would be if any circumstances where leaseholders lose money as a result of the breach were to occur - even if the breach favoured the leaseholders most of the time).

    I suspect that there are a lot of leasehold properties where either freeholder or leaseholder is aware that the other party is somehow breaching the terms of the lease (both may even be aware) but ignores the breach because it doesn't cause any harm, or financial lose and may even be beneficial to them.

    As for paying contributions for insurance direct to the broker, that wouldn't mean that the insurance costs are not still part of the service charge, and wouldn't mean that the freeholder hadn't fulfilled their duty to arrange insurance under the terms of the lease (if the insurance met all requirements).
    While it isn't normal for leaseholders to pay their part of the insurance directly to the broker, I don't see any reason why they can't do this if they agree to do so (although it would probably make it more difficult for those leaseholders to later challenge the cost of insurance as paying direct is likely to be considered acceptance of the cost).



    Originally posted by Gordon999 View Post
    The Freeholder is legal owner of the building so I have doubts whether an injunction can succeed .
    ​​​​​​​The idea of an injunction, in this case, would be to require the freeholder to perform some, or all, of the obligations that he has under the terms of the lease - not to restrict his rights as the legal owner of the building.

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  • Gordon999
    replied
    The Freeholder is legal owner of the building so I have doubts whether an injunction can succeed . You could try asking the Court Manager at your local Magistrates Court. The problem at County Court, the Court Manager and staff will not give any advice and send you away..

    Best option is application to the FTT for judgement on the reasonableness of the service charge account. Second option is setting up RTM if you have 51+ % support from other leaseholders. Third Option is to sell and move on .

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  • Stacker
    replied
    Macromia ... the lease is a contract..you cant just do what you like...pick and chose otherwise no point in having a lease!!!!

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  • Stacker
    replied
    Thanks for your replies all welcome and Macromia we have always insured the common parts it is a requirement of a clause in the lease and this year they changed it so I cant see them saying they cant afford it or don't agree after six years they have to as you say comply with the lease including paying all the costs through the service charge that is what the lease says all tenants are to do it does not say pay a third party otherwise no point in having a Lease otherwise.

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  • Macromia
    replied
    It sounds like the building may be adequately insured, but the insurance doesn't fully comply with the terms stated in the lease. This might give you grounds for arguing that the entire insurance premium is not payable - even if the reality is that the increased premium, excesses, and likelihood of a claim, means that someone owning a similar property as a sole freehold owner would consider it an unreasonable expense.
    While you might 'win' in a tribunal, you would have to consider whether the potentially increased premiums you would have to pay afterwards made it worthwhile arguing this point.

    Being asked to pay insurance premiums directly to a broker isn't right, but since you aren't personally doing this you can't argue that point. There is no reason why leaseholders/freeholders can't deviate from requirements of the lease by agreement - it just risks complications if there is a dispute.

    Regarding other alleged breaches of covenant by the landlord, you will have to decide what the best course of action is. Trying to get a manager appointed would be one potential way forward, but taking this route may will only be a temporary solution, and might work out expensive in the long run.
    It's likely to be better to find a way to make the freeholder understand their responsibilities, or to find a way to take over control of the management of the block.

    Leave a comment:

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