service charge issues

[leaseholdanswers]

Hi,
just been to court, was given a copy of the letter sent to the managing agent stating "no further directions given. The claim is presently struck out for non-compliance with the order".
I just got a letter from the DCA stating i have been given 7 days to pay. including in this debt is that which has been struck out.

kind regards

Who is the claimant named in the claim? If it is the MA and unless they are named in the lease, then the claim may have been filed incorrectly and would not be binding on the landlord ( be that a FH HL or RMC/RTM/RTE company) or the Court. Its a common mistake.

The amount been claimed is wrong, it includes amount that was brought before the courts, which excludes amount that has been paid by me and illegal charges

Can you elaborate

[wadada]

also forgot to add the solicitors charges for bringing this unresolved case to court was also added to to my account this cant be right, can it?

[wadada]

Who is the claimant named in the claim? If it is the MA and unless they are named in the lease, then the claim may have been filed incorrectly and would not be binding on the landlord ( be that a FH HL or RMC/RTM/RTE company) or the Court. Its a common mistake.



Can you elaborate

Thaanks for your response,
The claimant name on the court claim is the previous Managing Agent. New managing agent is now trying to reclaim all debtowed including the one in dispute.it is also the new managing agent, that has sent debt to DCA.

Thanks

[leaseholdanswers]

Thaanks for your response,
The claimant name on the court claim is the previous Managing Agent. New managing agent is now trying to reclaim all debtowed including the one in dispute.it is also the new managing agent, that has sent debt to DCA.

Thanks

Thought as much- they can take the entire amount forward ( hang on ) as the claim was invalid as the claimant had no claim to the money ( assuming that they are not named in the lease).

Your first issue is then to respond on repayment of the original and current debts ( they for practical purposes one and the same so parcelling it into current and old is irrelevant) and proposals for payment.
Your second issue is do you dispute any amounts in the SC as billed in old or current or have any issues that have been raised and not addressed?
Your third issue is the costs, and first would be to ask them to clarify under which section of the lease do they consider these costs recoverable, and second have any of those costs been billed to you with a summary of rights under administration costs, and if not then you exercise your right to withhold them, not withstanding the issue of whether they are recoverable or not, and fourth that the original proceedings which were struck out and irrecoverable ( assert that now and let them respond, keeping up your sleeve that they were issued in "the wrong name") and that the costs are not recoverable as no award for costs was given ( which links back to the second point on what costs the lease allows to be recovered).

In the meantime as earlier suggested you need to look at your repayment and what you would propose and justify to a court in repaying these or if items are disputed, how you you take that dispute to resolution.

[siva]

wadada, I have found a Court of Appeal case on the subject of failures in regard to Court Orders. The original County Court case was pointed out to me by andydd. It would appear to be at the discretion of a Judge whether a new case can be brought. It will depend on the exact circumstances of what happened. Likewise, they may simply re-instate the old case.

If you entered into a repayment plan then that may go in the claimants favour when/if a new case is brought. However you may get the Judge to approve the same terms of repayment if you didn't miss any payments.

That doesn't mean all is lost. You may be able to dispute the service charges and come to a new, even better, agreement for repayment. If you have details of how the service charges are calculated then post them here and help will be forthcoming.

You will need to check your lease to see whether solicitors costs can be added.

[wadada]

Thought as much- they can take the entire amount forward ( hang on ) as the claim was invalid as the claimant had no claim to the money ( assuming that they are not named in the lease).

Your first issue is then to respond on repayment of the original and current debts ( they for practical purposes one and the same so parcelling it into current and old is irrelevant) and proposals for payment.
Your second issue is do you dispute any amounts in the SC as billed in old or current or have any issues that have been raised and not addressed?
Your third issue is the costs, and first would be to ask them to clarify under which section of the lease do they consider these costs recoverable, and second have any of those costs been billed to you with a summary of rights under administration costs, and if not then you exercise your right to withhold them, not withstanding the issue of whether they are recoverable or not, and fourth that the original proceedings which were struck out and irrecoverable ( assert that now and let them respond, keeping up your sleeve that they were issued in "the wrong name") and that the costs are not recoverable as no award for costs was given ( which links back to the second point on what costs the lease allows to be recovered).

In the meantime as earlier suggested you need to look at your repayment and what you would propose and justify to a court in repaying these or if items are disputed, how you you take that dispute to resolution.

Hi,

You said to ask them to clarify under which section of the lease do they consider these costs recoverable, and second have any of those costs been billed to you with a summary of rights under administration costs....who? DCA or MA? and how?

Firstly, the old and the new debt contains amounts disputed, which i have been paying 100 pounds towards.
secondly, the debt is now with the DCA who added 150 pounds to debt. (giving me 7 days to pay full debt old and new including charges)my repayment plan was rejected by new MA.
Thirdly, should i put a repayment proposal to DCA or MA? should i do this without sorting out the incorrect amount demanded?
Fourthly, from my monthly instalment of 100 pounds, 100 pounds is not reflected in DCA letter.

thanks.

[andydd]

Deal with MA not their monkey DCA.

Most Landlords/MA's are senisble enough not to incvolve DCA's they have no power to recover anything and are a waste of money for all involved in my opinion.

You need to read your lease and spell out to use what it does or doesnt allow.

1. Is MA party to the lease ?

2. What 'extra' costs does lease allow, legal costs, arrears extra costs, interest ?

3. Have the demands been properally served with Summary of Rights attached ?

Personally I'd wouldnt be dealing at al with the DCA, I'd only deal with the those mentioned in the lease, the LL or his appointed managing agent.

Andy

[siva]

If you write disputing the service charges or costs then it should be to the managing agent unless the "debt" was assigned by deed of assignment and you were sent a notice of assignment.

Before writing I would take a look at your own lease to see if legal costs can be added. If in doubt post anything that you suspect allows the charges on here. Also post details of the service charges on here with any dispute you may have. There have recently been some major changes in the way service charges are allowed to be charged so you may find yourself in a strong bargaining position.

[leaseholdanswers]

Hi,

You said to ask them to clarify under which section of the lease do they consider these costs recoverable, and second have any of those costs been billed to you with a summary of rights under administration costs....who?

Any costs, other than than service charge, msut be billed with a summary of rights for admin costs.

Now the SC bills for the MA will include SC and lets call them Costs (together totalling A )

And a DCA may add further costs such A +DCA costs, the total of which is paid to them and they in turn remit A to MA. And DCA cost must also be accompanied by a Summary as well.
http://www.legislation.gov.uk/uksi/2...ulation/2/made see 2 b 1

As a rule legal costs which are defined as admin costs are only due where a lease allows them, hence asking the question, or if the court awarded them (when they cease to be admin costs).

The purpose of all this is to respond to the DCA and copy to the MA and the Landlord as identified in the invoices within the time limit.

Firstly, the old and the new debt contains amounts disputed, which i have been paying 100 pounds towards.

Well explain your schedule of payments does not agree with theirs.
But are you disputing what has been demanded of you and what you have paid, or are you saying "of £x demanded for me for the cleaning, i know that the cleaning is not being done"

secondly, the debt is now with the DCA who added 150 pounds to debt. (giving me 7 days to pay full debt old and new including charges)my repayment plan was rejected by new MA.

Well in addition I would respond that the orignal debt plan was agreed for the old amounts and that you will pay in full the amounts that have demanded by them, and that you consider the earlier agreement binding as between you and the landlord, for whom the old and current agents acted as agent.The argument if it got to court is that they were estopped by the earlier agreement and while it is not 100% a court would have to be convinced why it should f be altered. if it was a poor agreement then that that is for the LL to take up with the old agent.


Thirdly, should i put a repayment proposal to DCA or MA? should i do this without sorting out the incorrect amount demanded?

As explained the DCA has been asked to deal with it so send it to them and copy in the others, from whom the DCA take instructions.

Fourthly, from my monthly instalment of 100 pounds, 100 pounds is not reflected in DCA letter.

As above reconcile what is due.

the important thing is to respond to the DCA quickly and let them take instructions and respond.

In the meantime we need you to check your lease on legal costs and clarify if you are just disputing the SC amounts they have asked for and the amounts you have paid or if there is an underlying dispute (as well).

[andydd]

wadada, I have found a Court of Appeal case on the subject of failures in regard to Court Orders. The original County Court case was pointed out to me by andydd. It would appear to be at the discretion of a Judge whether a new case can be brought. It will depend on the exact circumstances of what happened. Likewise, they may simply re-instate the old case.

If you entered into a repayment plan then that may go in the claimants favour when/if a new case is brought. However you may get the Judge to approve the same terms of repayment if you didn't miss any payments.

That doesn't mean all is lost. You may be able to dispute the service charges and come to a new, even better, agreement for repayment. If you have details of how the service charges are calculated then post them here and help will be forthcoming.

You will need to check your lease to see whether solicitors costs can be added.

That summarizes it quite well, unlike CPR 38.7 Disctinuances claims where there is a right to re-litigate IF permission is granted, its my opinion that the default position is that is an absolute bar on re-litigating claims a second time..this is true if the first claim actually had a full hearing or if it was thrown out earlier on due to a procedural error, to quote the Judge "To allow such a claim to proceed would, we argued, bring the administration of justice into disrepute and it should not be right that there would be no sanction at all for failure to comply with the specific and strict court rules regarding service of proceedings."

IF a claim is struck out, its not all lost, they can ask for a set aside and case re-instated and after that follow the appeal route if unsuccesful but if they have both failed (or not done within certain time) then it really is the end of the road for the claim (unless under exceptional circumstances).

In this cvase the involvement of DCA,s, solicitors anhd extra costs has added to a complex sitaution, but even IF these costs are recoverable under the lease, a S20C application could disallow them being recovered via the service charge.

Andy

[leaseholdanswers]

Deal with MA not their monkey DCA.

Andydd thats pointless as the MA will refer them back to the DCA with who they have asked to respond and deal with.

The delay and confusion will likely result in the DCA then escalating to whatever next stage they have planned and the opportunity to hash out these issues is lost.

moreover if they do go ahead, if the issues remain unanswered the Court will look most unhappily if the claimant has ignored them and left them for the Court to resolve.

Your opinion not withstanding a large number of MA and landlords do use DCA's or solicitors on a simple DCA process, and it is very profitable for the usual suspects with commercial fee sharing arrangements. For the handful that are written off there is a lot to made made from those that do pay up.

[leaseholdanswers]

IF a claim is struck out, its not all lost, they can ask for a set aside and case re-instated and after that follow the appeal route if unsuccesful but if they have both failed (or not done within certain time) then it really is the end of the road for the claim (unless under exceptional circumstances).

In this cvase the involvement of DCA,s, solicitors anhd extra costs has added to a complex sitaution, but even IF these costs are recoverable under the lease, a S20C application could disallow them being recovered via the service charge.

Andy

I agree however all is for naught if as it seems the clown MA has issued proceedings back in 2010 in their name and not the clients. All depends on the circumstances hence the suggestion to put them on the back foot with theassertion that the amount was struck out and let them respond.

[andydd]

I agree however all is for naught if as it seems the clown MA has issued proceedings back in 2010 in their name and not the clients. All depends on the circumstances hence the suggestion to put them on the back foot with theassertion that the amount was struck out and let them respond.

Having discussed this a bit more, it appears to me that struck out cases can be allowed to be re-litigated depending on why they were struck out, if an unless or premptory order was issued (Saying Do so and so, or claim will be struck out) then I believe itis a definative NO, but if struck out for other reasons, it could be upto the discrection of the Judge.

This case > http://www.kennedys-law.com/article/abuseofprocess/ shows court agreed about absue of process but an appeal court reversed this decision.

But it ceratinly is a good defence, before even arguing about service charge recoveribilty my first paragraph would say This is re-litigation and abuse of process, chuck it out Judge !

Andy

Andy

[leaseholdanswers]

But it ceratinly is a good defence, before even arguing about service charge recoveribilty my first paragraph would say This is re-litigation and abuse of process, chuck it out Judge !

Andy

Andy

Yes but its even better if the respondents asks at the outset for an answer on this and don't get one.

[wadada]

If you write disputing the service charges or costs then it should be to the managing agent unless the "debt" was assigned by deed of assignment and you were sent a notice of assignment.

Before writing I would take a look at your own lease to see if legal costs can be added. If in doubt post anything that you suspect allows the charges on here. Also post details of the service charges on here with any dispute you may have. There have recently been some major changes in the way service charges are allowed to be charged so you may find yourself in a strong bargaining position.

A section of lease states:

"IF the Service Charge payable under Clause 2 of Part 1 of the Seventh Shedule hereto or any part of it shall at any time be in arrears and unpaid for twenty one days after the same shall have become due the Company shall be entitled to distrain re-enter or exercise any other remedy for breach of covenant (but without prejudice to any other right) PROVIDED that any sum so recovered by teh company shall be paid to the Management Company whether or not the Management Company is in existence at the material time"

The Clause 2 of Part 1 of the Seventh Shedule states:

"Throughout the Term to pay the service charge and in particular:
1. Upon the execution hereof pay to the Management company the sum of ---- on account of the service charge for the current financial year
2.On teh 1st of January and 1st of July in each financial year to pay to the Management Company such sum as it shall determine as a fair and reasoanble interim payment on account of the Service Charrge for that Financial year
3. Upon receipt of the Accountant's Certificate forthwith to pay to the Management Company the balance of the Service Charge mentioned therin after allowing for the aforementioned payments on account

Does this have anything to do with them being able to add costs and charges to what is owed as this is the only part that seems to address this in the lease.

Is it possible for MA to provide me with a breakdown of statements from the very beginning if I ask? If so, are there any acts that support this?

Should I also request that the DCA provide me with a full statement/breakdown so I can pinpoint where there are disputes and it can clear up any misunderstandings.

Can I send for both requests through the MA or do I write to each separately?