To sue or not to sue

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    To sue or not to sue

    Basically, co FHs are going to sue the leaseholder, via the small claims court anyway.

    The leaseholder in question has outstanding section 20 repairs costs, which he ignored and keeps ignoring for several months by now.

    Also, there are bigger section 20 coming up but it is being delayed due to covid.

    Original idea was to send a letter before action after 2nd section 20 works completed.

    Now in light of delay and other issues (ie no access to the property to review the state, no repairs and other issues re rubbish not being removed from the communal areas), we are thinking that we are waisting time and not resolving the issue.
    ​​​​​​
    so re small court claim is easy - just a letter before action and then the claim online.

    Re breach of lease - that is section 168 - is the protocol is the same - letter before action or can we just file a claim in the tribunal?

    Thanks

    ​​​​​


    #2
    If you are considering applying for determination of a breach of lease, which presumably means that you are considering applying for forfeiture, you should take proper legal advice before taking any other action whatsoever.

    Comment


      #3
      You might as well issue the claim online and if you get judgment in default you can then approach the mortgagee who will settle



      Comment


        #4
        Macromia , we don't want to spend too much monies at the moment, both co-FHs agree that we won't get a forfeiture but we also know unless there is a court order leaseholder would keep ignoring any letters (they were all sent, but for the letter before action for small court)

        And we don't want to have to pay for solicitors costs - it is cheaper to apply to tribunal for determination of breach and then we could either engage solicitor if required

        Comment


          #5
          I don't see any advantage in obtaining a ruling on the breach as long as you have sent letters demanding the breach be rectified and they haven't denied the breach, I would just go after the money in the small claims, you could get a default judgement in a fortnight and mortgagee will pay.
          Advise mortgagee that you are considering forfeiture for the breach and they will put pressure on lessee as well.

          Comment


            #6
            , we would need to get expensive repairs done and I don't want going to tribunal or small claims court while paying 15+k out my monies to subsidise the leaseholder.
            we want to determine breach of lease to secure performance order so that the monies are being paid when due not a year later

            Comment


              #7
              Originally posted by Anna1985 View Post
              we want to determine breach of lease to secure performance order so that the monies are being paid when due not a year later
              If you want to get a determination that the lease has been breached for any reason, you need proper legal advice. Many types of breach can be considered to have been 'waved' if you take any action that can be considered to mean that you want the lease to continue and, although forfeiture is always an unlikely outcome, it is the threat of potential forfeiture action that is what makes determination that a breach has occurred useful for freeholders.

              Small claims court action to recover money that is owed sounds like your best course of action.

              Comment


                #8
                Macromia , we sent the letters demanding breach to be rectified and didn't get any response or actior. Just ignored basically.

                ​​​​​​By lease we could take action to rectify disrepair and recover funds but we have no access nor desire to do the repairs ourselves - we want leaseholder to act as per lease.

                hence, we want to establish breach and get either performance order or force a sale - or if leasehold decides to sell so much the better.

                None of FHs think we could obtain forfeiture

                Comment


                  #9
                  So you aren't only talking about non-payment of service charges (which would be a breach of the lease), there is also some other unspecified breach (presumably something to do with repair covenants)?

                  Whether it is worth even trying to get an official determination that a breach has taken place is likely to depend on what the breach is.
                  You will not obtain forfeiture unless the leaseholder completely ignores all legal proceedings and doesn't try to defend (or possibly if the leaseholder owes as much as the flat is worth, or the building is an serious risk of collapsing as a result of their actions), but without the threat of forfeiture action there is no point in obtaining determination of a breach.
                  Forfeiture proceedings typically aren't commenced because there is an expectation that it will be granted, the expectation is that the leaseholder will avoid forfeiture by correcting the breach and that they will also be required to pay the legal costs.

                  If the leaseholder has ignored your demands for whatever the breach is to be rectified, why do you think that would change if you have the breach agreed by a tribunal - unless you have further action that you can take to force them to take fix the breach?
                  If you are talking about a repair breach, you at least have the advantage that it will be an 'ongoing breach' and therefore not one that will potentially be waved by your actions.

                  Comment


                    #10
                    Hi, yes - that is the situation.

                    We want to apply for the breach of lease determination to take further action and get a performance order - we would ask for forfeiture of course as the legal costs would only be paid as a part of forfeiture procedure.

                    However, we are under no illusion that we are going to get forfeiture.

                    Comment

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