Possession Proceedings Issued Without Notice

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  • badbobby
    replied
    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. 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from a firm of solicitors stating that she must pay the £582 plus their costs of £1007 in order for the case to be withdrawn, however if not paid additional costs for instructing council to attend the hearing will be added.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but was told its tough, it was her responsibility to inform the freeholder of her address and the case will only be withdrawn if she pays their costs too!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!
    Am I missing something here?

    1) Maintenance charges are paid - does this mean that these have been correctly addressed and, furthermore, is the landlord the same person as the managing agent? If so, they would have the address

    2) You say that the land reg docs state the correct address. Has this always been the case and was this address specified on the completion docs?

    Ta

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  • leaseholdanswers
    replied
    You say that they didn't comply, did they send a letter before action, well you don't know as they only had the property address.

    Your post above is an argument that is refereed to building your house on sand- quickly washed away- they produce the copy LBA, which for all you know they printed that morning, and your argument is gone.

    That she offered to pay rent when they tracked her down doesnt remove the liability for costs- dont trust the marblings of a council gerbil, who clearly doesnt have the complete facts, but someone who has for many years dealt with such cases - court appearances in the 100's.

    As the address wasn't given, it is stacked against you and quite right to, how on earth was the landlord to find you and why should they, you have the ability to mitigate costs as explained and if you read the decision and like ones you can see how to.

    Otherwise you are fooling yourself with an easy answer that fits the one you want. If you do, that feeling behind you, thats the teeth of their claim about to bite you in the bum

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  • domtait
    replied
    Thank you all for your comments the advice is appreciated. I can see if from the LH's point of view, they have a tenant who hasn't paid the rent for many years, but still believe that the course of action £1007 is over the top. If I was to miss a months rent my LL would send debt collection agency within days, not ignore it until the arrears were big enough to evict me, different situation but the principle is the same.

    I contacted my local authority housing team and was able to speak to an officer who assists people in court with these sort of issues, although usually they are benefit claimants in social housing with different rules, rather than long leases such as this.

    Their opinion was that whilst the LH was within their rights to issue these proceedings, it's worth fighting on the grounds that she has paid the rent arrears (plus interest) and as they haven't complied with the pre action protocols, given the seriousness of issuing posession proceedings, that will not be looked upon favourably. They thought that its quite probable that if this proceeds to a hearing my mother will be ordered to pay the fixed costs under the CPR (somewhere in the region of £280?) but not the thousands which are being asked for.

    Is that reasonable advice or by continuing is she likely to end up paying far more than the £1k? I'd point out that she is a 64 year old disabled woman so this matter is causing significant stress, I don't want to make it worse by telling her to pursue a hopeless cause!

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  • leaseholdanswers
    replied
    Originally posted by siva View Post
    It must be annoying to have to wait for the arrears to go above £350 and then to have to chase offenders down. Then be restricted to costs only. People generally have better things to do.
    Well you can still get a money judgement for less than that.

    Yes in that the lease is the first place to start and restricting this to the recovery of arrears it is broadly under the lease or rely on the court to award costs.

    Bit the legal costs are variable, they are set at £1200 because the LL and their solicitor happen to charge that rate. Another might use a different rate. As in the Section 20 thread you are just using common sense and ordinary meaning and forgetting that L & T has it's own logic.

    Leave a comment:


  • siva
    replied
    Originally posted by leaseholdanswers View Post
    I know I am being unsympathetic
    It must be annoying to have to wait for the arrears to go above £350 and then to have to chase offenders down. Then be restricted to costs only. People generally have better things to do.

    Leave a comment:


  • siva
    replied
    I'm starting to have doubts about my argument for taking this to the LVT.

    The LVT can only consider variable administration charges which are payable. I've argued this before without much support but the way I see it, if the lease doesn't mention the charge then it is not payable as such (unless you agree to pay it). Also if the lease does mention it but specifies the amount or says how it is calculated then it is not classed as "variable". I don't think it is variable if they just say they want £1200.

    I'm thinking that options 1 & 2 (in my post above) are now less risk.

    One possible way to bring it into the LVT's jurisdiction if it is not mentioned in the lease in variable terms is, when paying in full, to say you agree to paying a charge but find the amount excessive. If they accept that payment then perhaps you have a payable variable administration charge.

    I don't think the interest charge is disputable if the formula for calculation is in the lease.

    Or perhaps you can rely on the s146 costs clause. Come to think of it Courts are usually restrictive against the Landlord when they try and recover general legal costs under that clause but it may be in the LVT's discretion to interpret that clause in your favour ...

    I'm looking at the case LHA posted and am wondering if the LVT have been rather generous in considering those costs. In paragraph 9 they refer to a covenant for recovering costs but it suspiciously is quoted as "in contemplation of any proceedings ......". I wonder if the lease then go's on to refer to s146/forfeiture proceedings which is the typical covenant in leases.

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  • leaseholdanswers
    replied
    Originally posted by siva View Post
    The costs demanded (including interest) appear to be about £1200
    That would put them in the exploitative rather than the remediatory

    A salutary lesson......

    I know I am being unsympathetic but this story is oh so familiar a tiny fraction of which are genuine oversights and more a mix of " hang it all"and "tough" to the landlord.

    Not only is it manna to those that exploit, but it really is no ones fault except their own, especially when they are genuine costs caused by the tenants act or omission.

    If its due then put it an ISA or deposit on a 3 month withdrawal you can get 2 to 5 %, so it might only be £20 but thats a pizza LOL

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  • andydd
    replied
    Originally posted by domtait View Post
    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?
    Alas not informing the FH of the correct address is a fatal mistake, many would say 'always pay the ground rent..even if not properally demanded' this stops scenarios like this and also protects you against the FH going down the forfeiture route for non-payment of service charges.

    As suggested perhaps pay up and then question the payability and/or reasonableness of the rest of the fees at an LVT.

    Andy

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  • siva
    replied
    Originally posted by leaseholdanswers View Post

    As explained, £500 odd for costs is not a lot and the landlord is entitled to use solicitors to do this work.
    The costs demanded (including interest) appear to be about £1200

    Leave a comment:


  • siva
    replied
    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.

    Leave a comment:


  • leaseholdanswers
    replied
    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

    Leave a comment:


  • leaseholdanswers
    replied
    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.

    Leave a comment:


  • domtait
    replied
    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?

    Leave a comment:


  • andydd
    replied
    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

    Leave a comment:


  • leaseholdanswers
    replied
    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.

    Leave a comment:

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