Possession Proceedings Issued Without Notice

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Possession Proceedings Issued Without Notice

    My mother owns a leasehold on a flat which she lets out via an agency. On Thursday she received notice from court for a possession hearing for non payment of ground rent, interest and admin fees totaling £582. This was followed by a letter from a firm of solicitors stating that she must pay the £582 plus their costs of £1007 in order for the case to be withdrawn, however if not paid additional costs for instructing council to attend the hearing will be added.

    THis was the first she heard about it. The claim form had 4 copy invoices exhibited all sent to the flat in question, at which she does not nor has ever resided, addressed to "owner/occupier". The letting agent hasn't ever received them nor have tenants ever forwarded one on so i assume they were binned (assuming they ever sent them). She pays the maintainance charges which are considerably more than the ground rent so in the absense of an invoice she never thought about rent.

    I contacted the firm of solicitors to explain why she never received an invoice and said we would pay the £582 immediately so would they withdraw the claim once recieved, but was told its tough, it was her responsibility to inform the freeholder of her address and the case will only be withdrawn if she pays their costs too!

    Please can someone advise if they are within their rights to have issued these proceedings? Had they ever contacted her at the correct address, which would have been easy to find if they had checked (its on the land reg docs etc) she would have paid immediately. Furthermore the solicitors obviously obtained the correct address when issuing the claim as her name and home address were on the claim form, yet no letters demanding payment were sent to the address prior to issuing the claim.

    She is a disabled pensioner and this has caused her a lot of distress. It doesn't seem right that they can have issued these proceedings without ever having notified her then demand £1k to make it go away!

    #2
    Hi.

    1. Does the lease mention S146 and the right to forfeit ?. It is normally this forfeiture route which is followed and not normally refered to as 'possession'. (Although the law on ground rent is possibly slightly different, I suspect another poster can confirm).

    2. So she has never received ground rent demands ?. (They also must, if received, comply with s166 of the commonhold and leasehold reform act 2002), if she has given them the correct address and they have sent them elsewhere then I suspect their claim would fail.

    2a. Has she informed them of the correct address to sen demands to (and has proof) ?

    3. Are service demands sent to the correct address ?. (This would clearly go in her favour).

    4. Did the freeholder sent a Notice Before Action or follow any of the pre-action protocols ?, whilst these are not mandatory, courts are not too happy with people who jump straight into legal action without making sonme attempt to settle first, this is especially important if there is some question of addresses. I believe that as this is a serious case of forfeiture then a court should look very seriously at whether the pre-action protocols were complied with.

    5. Does the lease mention legal and/or admistration costs and if they can be claimed ?, remember in small court claims, such legal costs are as rule not recoverable.

    The rules/laws on service charge arrears say that any such breach (i.e non-payment) must first be admitted or be adjudicated on at Court/LVT although the rules on ground rent are a bit different.

    Let us know how you get on.

    Andy
    Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

    I do not accept any liability to you in relation to the advice given.

    It is always recommended you seek further advice from a solicitor or legal expert.

    Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

    Comment


      #3
      The Shelter site has a good explaintion of Grount Rent (and non-payment) > http://england.shelter.org.uk/get_ad...ts/ground_rent
      Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

      I do not accept any liability to you in relation to the advice given.

      It is always recommended you seek further advice from a solicitor or legal expert.

      Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

      Comment


        #4
        Originally posted by domtait View Post
        My mother owns a leasehold on a flat which she lets out via an agency. On Thursday she received notice from court for a possession hearing for non payment of ground rent, interest and admin fees totaling £582.
        Rent needs to have been demanded properly using the correct form. See here.

        Administration charges also have to be demanded properly and include a summary of tenants' rights and obligations. See here.

        Has any part of the rent been owed for more than 3 years? How much rent is allegedly owed?
        I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

        Comment


          #5
          Siva raises good point, is the actual ground rent over £350 or has been owing for more than 3 years ?
          Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

          I do not accept any liability to you in relation to the advice given.

          It is always recommended you seek further advice from a solicitor or legal expert.

          Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

          Comment


            #6
            Remember this is rent, S146 does not apply, and as the bill is over £1000, the rent is likely £400.

            I suspect that given the form of the letter and cost that it is a particular firm, who act for certain landlords.

            That said the key is that the property is let out and I wonder if the OP has let them know, or indeed given an alternative address for sending those demands.
            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

            Comment


              #7
              I would also add that payment does not mean you can't dispute the admin. charges and interest. As long as you don't admit they are reasonable you can dispute the reasonableness of the them later.

              >and as the bill is over £1000, the rent is likely £400.

              You are probably right but £582 is rent, interest and admin. charges. They're asking for £1007 for the case to be withdrawn. That sounds high to me but I don't have any experience of what they actually have to do. Surely it's not a lot more than filling in a form and sending it to the Court?
              I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

              Comment


                #8
                But filling in a form at £250 or more ph, and while its unlikely they need to or did, they are entitled to charge for all the attendant work and compliance.

                Say receiving instructions from client over all file set up obtaining and reading the lease, perusing evidence and documents, advising client and taking instructions, before "filling in a form".

                Even thought its a bog standard letter and process with little of the above.

                The breakdown probably includes Admin Charge for Late Payment,
                Admin Charge for Solicitors Referral, Land Registry Charge,
                Legal Costs , court fees etc.
                Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                Comment


                  #9
                  So in cases of ground rent it jumps the s146/forfeiture/court or lvt must decide stage ?

                  And also the remainder of the charges/fees may be service/admin charges and thus the normal sc rules apply to them ?

                  Andy
                  Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

                  I do not accept any liability to you in relation to the advice given.

                  It is always recommended you seek further advice from a solicitor or legal expert.

                  Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

                  Comment


                    #10
                    No, not quite, s146 simply doesn't apply, never did.

                    An LVT cannot determine a breach when it's simple contractual matter, you paid a fixed contractual amount or you didn't. You go to Court, and, what could they ask an LVT to determine?


                    You still have to follow the CPR, but the usual suspects and their solicitors are well versed in this.
                    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                    Comment


                      #11
                      Originally posted by leaseholdanswers View Post
                      No, not quite, s146 simply doesn't apply, never did.

                      An LVT cannot determine a breach when it's simple contractual matter, you paid a fixed contractual amount or you didn't. You go to Court, and, what could they ask an LVT to determine?


                      You still have to follow the CPR, but the usual suspects and their solicitors are well versed in this.
                      Aha..but if the GR demands were not S166 compliant or indeed never sent to an address given by the LH then she would appear to have a defence.

                      Esp, if the Fh would appear to be aware of the correct address (the solicitor/court sent correspondence there) and perhaps (although we dont know), the SC demands were sent there too.

                      It is rare to chase forfeituire for such a small amount, and I would kick up a stink if they didnt follow NBA/pre-action protocols, especially for something as serious as forfeiture.

                      Andy
                      Advice given is based on my experience representing myself as a leaseholder both in the County Court and at Leasehold Valuation Tribunals.

                      I do not accept any liability to you in relation to the advice given.

                      It is always recommended you seek further advice from a solicitor or legal expert.

                      Always read your lease first, it is the legally binding contract between leaseholder and freeholder.

                      Comment


                        #12
                        Thank you for the responses, she today paid the LH the outstanding rent in full, but not court fees or costs:

                        1. The ground rent is £100 per year and are 4 years in arrears. the lease does state that they will add interest + admin fees for late payment. The interest also appears to be calculated correctly. The lease also states in a paragraph titled Sections 146 and 147 that the lessee has to pay all costs charges and expenses including legal fees incurred by the landlord.

                        There is a section saying s196 of the law and property act will apply to any notice or demand. Looking at the act is concerning as it states:
                        2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

                        2. She has never informed the landlords agents of her home address directly (that i am aware of) although every other interested party appears to have the correct address. SHe has never used that address for anything.

                        3. There is no letter before issue, the only correspondence we have seen or that have been exhibited are 4 invoices addressed to owner occupier and a final statement in the same name. no letters state that any legal action will be taken.

                        4. They have used the correct form but have put owner/occupier rather than the name of the tenant. Does this make the notice invalid?

                        5. When i spoke to the solicitors they said that they obtained the corrrect address from the land reg documents. THis siggests they only obtained the correct details when it came to issue the claim. When the solicitor looked at the file they should ahve known it was unlikely the notices had been sent to the correct address.

                        We do not dispute that she owes the money, clearly she should have noticed nothing was being paid and chased it up. I do dispute her paying £1007 for the proceedings to be withdrawn when this could have been resolved without the need for legal proceedings. They certainly haven't followed the pre action protocols and have used the most severe legal proceedings as the first step rather than last. Surely a judge is unlikely to award £1007 costs plus their cost of attending a hearing?

                        Comment


                          #13
                          So I was right the GR is £400 and having let the property failed to let the landlord know where to send the bills to...

                          So cant you see why the landlord on discovering all this says sod you I will teach you a lesson and make you pay through the nose? its is absolutely none of the landlords fault and an owner has by action said to heck with you and your rent, catch me if you can?

                          They can serve the demands lawfully on the property as you say under s196 and as after all why is their responsibility to find out or the owner is there or where the owner has wandered off to?

                          As the owner has not even contacted her tenants re post to her at the address, then you are going to find no sympathy with a court or LVT if the lease allows recovery of costs, which it may not. As explained, £500 odd for costs is not a lot and the landlord is entitled to use solicitors to do this work.

                          Sorry but this is like a speeding fine, we all hate them and dont think they are fair but if you dont speed you dont get em.
                          Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                          Comment


                            #14
                            Originally posted by andydd View Post
                            Aha..but if the GR demands were not S166 compliant or indeed never sent to an address given by the LH then she would appear to have a defence.
                            But as I psoted and you quoted in your reply
                            You still have to follow the CPR, but the usual suspects and their solicitors are well versed in this.


                            Not living there, she is hard pressed to argue that they weren't sent even if it were say me and I printed them the morning of the hearing....

                            As we have said you
                            a check the lease for recovery of such costs and ask them to explain where in the lease such charges can be levied
                            b refuse to pay them until a summary of admin rights is provided
                            c challenge them at the LVT.

                            But as to thinking they are unfair then that a fallacy its entirely a self inflicted situation which allows landlords to exploit them as much as have to legitimately incur costs to solve a problem created by another.

                            Here is a decision that might help
                            http://www.lease-advice.org/decision...-8000/7635.pdf
                            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                            Comment


                              #15
                              You have to weigh up your options and the risks and cost of each option.

                              If you go to County Court the costs for the other side go up and so do yours unless you represent yourself.

                              You could argue in the County Court that the notice is not in the prescribed form but unless you have some case law to rely on in regards to the leaseholders name not being used then you are at the mercy of the Judge. Give www.lease-advice.org a ring and see what they think.

                              In the County Court you can argue that no LBA was served and ask the Judge to limit the other sides costs but beware LHA's comment "the usual suspects and their solicitors are well versed in this". Even if the Judge doesn't award all of the costs as part of the decision they can make a separate claim for the admin. costs (if the lease allows them).

                              You can pay the admin. costs to keep it out of Court and then immediately challenge them at the Leasehold Valuation Tribunal (LVT) on the grounds of reasonableness. From what I've seen of LVT decisions they are very strict when it comes to evaluating costs. They generally take into account the actual work carried out (rather than the work claimed to have been carried out) and calculate using an hourly rate appropriate to the task.

                              Also, the LVT is a low cost "no costs" jurisdiction which LL's don't like. But double check your lease to see if general legal costs can be recovered by the Landlord. Costs under the heading s146 shouldn't be recoverable unless they are actually seeking forfeiture via the s146 route. It's quite easy to represent yourself at the LVT.

                              If it was me, I'd quickly look into the first two options to see if there are any precedents and if not I'd pay up in full, making sure I didn't admit that the amount of admin. charges was reasonable and then opt for the LVT route.

                              Don't be surprised if the payment is returned.
                              I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X