The Landlord's right to have access, solicitor's costs to be passed to debt collector

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    The Landlord's right to have access, solicitor's costs to be passed to debt collector

    Thank you in advance for your time to reply to my question.
    This relates to an 85 year old couple and I would appreciate your help.

    Background information:
    This relates to an estate for the over 55s - a RMC that owns the freehold and it was set up for the benefit of the residents - a not-for-profit company.
    The Operations Manager has decided to fit new radiators and standardise them along the estate. No S20 consultation has been carried out and we have limited information as to why the works have been organised, apart from the excuse that this was in light of the increased gas costs from October, but also stated that there were other reasons, as well. The works are now deemed to be 'urgent' - of course, no dispensation from consultation has been obtained from the Tribunal.


    The letters demanding access:
    A month ago the OM sent a letter notifying that they would need access on 4th July and since they did not have the key to the property, the couple should give their permission.
    The works would take the whole day and it would cause a lot of disruption. It was advised that the couple should leave the bungalow.
    Last week the man advised one of the directors that he could not provide access as he was going to attend a funeral on that day and the following day he had an appointment with his oncologist.
    He gave permission for the 7th July.
    Then, the couple further discussed this and they say that the radiators to be fitted are smaller and they became nervous that the heating levels they enjoy would not be maintained in the future.
    They also realised that they had not been consulted and minimal information has been provided.
    They are also under a lot of stress as their daughter is also diagnosed with cancer and the wife is in the early stages of dementia.
    They just need a period of calm and to enjoy their home peacefully - so, they wrote to ask for reassurance about the heating levels, also saying that their radiators are working perfectly - so, why did the OM deem appropriate to be removed and they refused access on the 7th July.
    They have now received a vile letter - claiming that they received legal advice on their breach of the lease to refuse to give access urgently' and if he didn't, they would seek an injunction.
    They also added that the solicitors' costs £800 plus VAT for notification of previous breaches ( such as one branch overhanging onto the communal grounds being classed as a 'trespass') would be passed on to a debt collection agency and they would be in touch shortly.

    Questions:
    1. If they seek an injunction, shouldn't they also prove the urgency of the works and that they have followed the S20 consultation or they have sought dispensation from consultation from the Tribunal? Also, they have not bled the radiators or maintained the system for years... would this also be an argument?
    2. The lease prescribes that the Landlord can have access to repair / renew the common parts and the conduits are classed as common parts. BUT the definition of conduits in the lease says that it is the radiators 'other than within the property'. Am I right to read this as the radiators in the properties being the residents' responsibility and they can not be using the service charge to replace them?
    4. The first solicitors' letter threatened that if the £800 fee was not paid in 7 days, they would take legal action to enforce the breaches. Following the residents' reply that highlighted that they did not have a case with a merit, the solicitor backed off and passed it back to the Board; yet, still wanting his fee. The resident ignored it as he deemed that by paying, it would be an indirect admission that he had been in breach.
    Can they pass this fee to a debt collector? Who is the owner of the debt? The Landlord who instructed the solicitor or the solicitor herself?
    Shouldn't they obtain a determination from the Tribunal that the resident was in breach before they actually say it is a 'debt'?

    I am grateful for any advice / guidance you could possibly give me so that I can, in turn, support this elderly couple.

    #2
    I'm only going to respond very briefly now. You need to be distinguishing three completely separate things.

    a) Whether the works are the responsibility of the lessor to carry out.
    b) Whether they need to be carried out, and if so whether the procedure was followed.
    c) Whether a lessee can refuse access to allow the lessor to carry out works that need to be carried out.

    At least on the later (c) the lessees have to cooperate to permit works to be carried out. Whilst this cannot be unreasonable or very short notice, from your narrative the refusal of access, then consent, then re-refusal seems completely unreasonable, and is going to cost all the lessees a lot of money.

    None of the aspects in (b) provide an excuse. If you are responsible for advising this elderly person to react in this way, you must desist. If you think the lessor has no responsibility for the heating system at all, you need to be discussing the lease here.

    Comment


      #3
      The first question that needs to be answered has to be:
      "Does the lease allow the freeholder to replace the radiators in the property?"
      If the answer to this is "No" (e.g. if the leases specifically exclude radiators within the property from the definition of 'conduits', and nothing else in the lease allows the replacement), then the leaseholders have no obligation to allow access for this work at all.


      If the lease does allow the freeholder to replace radiators as an 'improvement', the precise wording regarding theleaseholder's obligation to allow access might be important.
      It sounds like you are saying that the freeholder is relying on a clause that requires access to be allowed when 'urgently' required. Replacing radiators that are working as expected and not causing any problem to other properties is not an urgent need for access.
      It might be considered wrong for the leaseholders to have refused access after initially agreeing to it, especially if this was an short notice, but this sounds like the type of work that the freeholder should definitely have fully consulted with leaseholders before arranging, especially if they expect the leaseholders to leave the property for the day, so it sounds to me that the freeholder might be acting irresponsibly.


      A 'debt' for solicitors fees can be passed to a debt collector but, if the leaseholders state that they do not acknowledge that they owe any debt no debt collector should continue to act to try and recover the supposed debt.
      It is the freeholder who engaged the solicitor, so it is them who have to pay the solicitor.

      Whether the cost of using a solicitor can then be recover by the freeholder by pursuing the leaseholder for payment will depend on the terms of the lease.
      Some leases allow legal fees to be recovered as an administration charge or as part of the service charges, others don't. If the costs can be recovered from the leaseholder (it sounds like the freeholder is treating it as an administration charge), they aren't payable until correctly demanded - and they can be challenged at a tribunal.
      Did the freeholder, or their managing agent, write to the leaseholders themselves before employing the services of a solicitor? If not, it is likely that the fees are unreasonable. Using a solicitor for something like this should be a last resort - especially for something as petty as a branch overhanging someone else's property (in that case they should simply have cut the branch at the point where it overhung the boundary and then put the cut branch back on to the property it came from).


      If there are breaches of the lease the freeholder may be able to pass any costs involved with pursuing these on to the leaseholders - this depends on the specific terms within the lease regarding recovery of costs and on the specific details of the alleged breaches.
      They do not necessarily need to obtain a judgement in their favour before any costs are incurred as some leases allow the costs involved with getting a judgement of a breach to be charged to the leaseholders.

      Comment


        #4
        The "urgency" is, as you must have realised, is that works of this type have to be coordinated, and have to happen in all flats at the same time. You can't call out contractors 10 times for a block of 10, drain the entire heating system each time, and then refill it with inhibitor. That would cost lessees a very large amount of cash.

        It sounds an odd lease that makes the lessor responsible for the heating system but not the radiators - that would be an impossible obligation. I really don't think we can say much more here - as I suspect the lessors probably tried a lot harder than you indicate without response and are in an impossible situation. It seems that they have been trying for months.....

        It might well be that consultation is not required (S20) because if lessees cooperate the cost of replacing 10 radiators is less than £250 per flat.

        Comment

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