service charge issues

[andydd]

Hi. First paragraph seems a bit odd, ir doesnt mention the usual s146/forfeiture route, Im not sure of the exact implications of that paragraph, I believe it doesnt amount to much.

The second paragraph is just standard, they can bill you in advance for service charges, twice a year.

What else does the lease say, does it say what the service charges consist of, what parts opf the property ?, the management ?

Unless there is more then no, he cant add on anything extra including, arrears fees, interest, legal solicitors costs, costs of debt collection, etc.

I dont believe there is a specific right to demand past statements, S21 of LTA 1985 allows you to deamnd breakdown of last amount, S22 allows you to visit and view docs (which I believe only allows you to view docs pertaining to the last service charge but may I guess allow you to view earlier stuff).

I'm not sure is you can use data protection requests such as SAR against FH's ?. Clearly you can against banks and other organisations to obtain backdated info.

If they are threatening legal acion then you could ask them for info under the CPR Pre-Action protocols see here > http://www.justice.gov.uk/courts/pro...civil/protocol or use CR 18 > http://www.justice.gov.uk/courts/pro...l/rules/part18 in particular see the CPR 18 Practise Direction > http://www.justice.gov.uk/courts/pro...rt18#id3585785 (you make an informal request first and if no response make a court ordered one or CPR 31 > http://www.justice.gov.uk/courts/pro...l/rules/part31

I had partial success using CPR 18.

It cant hurt to ask for as much info. as possible, make it clear that you are following the CPR Pre Action protocl and try to use the wording/guidelines they mention.

Andy

[leaseholdanswers]

Hi. First paragraph seems a bit odd, ir doesnt mention the usual s146/forfeiture route, Im not sure of the exact implications of that paragraph, I believe it doesnt amount to much.

Actually its pretty crucial.

W, is the the Man Co made up of residents say your block of flats man co limited, or is it a trading company where the owners and directors are not flat owners?

This is what I was saying about it being a party to the lease, in which case if the claim was in their name then it is is valid, however if they employed agent A ( and now employing Agent B) and it was in agent's A name then it would be invalid.

You also need to tell us more about the costs under the lease.

[siva]

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.

No it doesn't. Does the lease mention "solicitor" or "legal" anywhere in close proximity to "fees" "costs" or similar words?

The other way they can recover their costs is via the courts. For small claim (less than £5000 usually) track cases this is only if your behaviour is deemed unreasonable.

Did you agree a repayment plan and miss a payment? For some reason I keep coming back to this thought. If so then you will probably find the Judge will allow a new claim for the same service charges and could even allow their costs on the grounds of unreasonable behaviour.

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?

Ask. If you do not get them then you can dispute costs at the Leasehold Valuation Tribunal (LVT) and they will no doubt order the Landlord/MA to produce them.

Before applying to the LVT you are best getting an opinion on here of whether the costs are potentially unreasonable. If they are clearly reasonable and you make a claim disputing them then you may be landed with £500 of the Landlords costs of going to the LVT (for unreasonable behaviour). Although that is not certain. The LVT should take into account the fact that you weren't given a breakdown when you asked.

So give us an idea on how service charges were demanded? Did you receive a certificate at the end of the accounting periods? Did the MA ask for payments on 1st Jan and 1st July each year? Did each demand contain the landlords name and an address? Did demands come with pages attached which were titled "Summary of Tenants' Rights and Obligations"?

These are all crucial points.

Were any major works carried out on the property? Remind me of the amounts asked for per year.

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

It is best if you write to one and send a copy to the other. Photocopy your signed letters and get proof of posting from the post office.

[wadada]

siva,

1.There is no where on the lease that mentions solicitors or court costs
2.I had a verbal agreement on a repayment plan with them and never missed any payments. There was a plan to review it in March and I received a letter from them in March stating that they would like to increase the amount I was repaying, but know that I can probably not afford anymore, so I should call them to discuss. I called them and they told me they were not willing to negotiate and if I don't pay the new increased repayments, they would pass it off to DCA, which they did and I received a letter from DCA aweek later.
3. They demanded for the SC by sending letters, it contained the landlords name and address, it came with "Summary of Tenants' Rights and Obligations". I received a statement at the end of each accounting year.

[wadada]

leaseholdanswers,

The directors are flat owners, but the MA asking for the payment were chosen by the directors and managing company.

The original money was owed to the Management company at which time a different MA was in charge, now there is a new MA demanding the arrears including the amount that was struck off in court with the previous MA

[siva]

Were any major works carried out on the property? Remind me of the amounts asked for per year.

Can you not find any of the demands? Was there no summary of service charges with the end of year certificates? Or have you just lost them?

[wadada]

hi,
The service charge has gone in the past six years from about 715, 817,915 to 1070 (2013),
the yearly demand from old MA, new MA (2013-2014) came with summary of service charge and tenants rights and obligations.
Demand for arrears came with just summary of service charge. Please forgive me for not articulating properly, been overwhelmed and highly stressed.

I dont know if this makes any difference, i am one of the directors, but when i brought this to the new MA attention, they said they dont have me on their system as one, strange.

thanks a lot for all your help

[leaseholdanswers]

The original money was owed to the Management company at which time a different MA was in charge, now there is a new MA demanding the arrears including the amount that was struck off in court with the previous MA

Then the crucial point is that in the earlier proceedings was the claimant your Man Co or the MA that was then instructed? If the latter, then the debt can easily be reclaimed. I will assume it was correctly issued in the name of the ManCO ( not MA)

You still haven't said if you dispute the underlying charges or not so I will assume you do not.

Taking together the points you have made I would be inclined to reply as follows, to the DCA and with copies to the MA and the ManCo registered office.

I refer to your recent correspondence and raise the following issues in regard to your client's ( Man Co) claim. Please note that I do not not agree or admit liability for the sums and reserve my right to have the amounts demanded determined:

1: The amount of current SC from (date)has been and will be paid as follows,
List amount and dates due and payments

2: Historic Arrears pre ( date in 1)

2.1. the following amounts are outstanding and the following payments have been made. Payments(list )n have not been included in the statement

2.2 On (date/dates) the then MA as agent for your client (Man Co ) agreed either under their direction or in their capacity as agent into a payment plan of (list and provide any evidence).
That payment is thereof binding having been entered into without qualification or condition, and thereby varied the payment frequency set out in the lease as to the recovery of service charges to this arrangement for that amount and over that time.

Should your client persist, then I reserve my position to exclude the amount of £X by virtue that a claim ( info) which was struck out on ( date) precludes the recovery of those amounts in new litigation.

(NB there is no simple answer here as you have an amount struck out yet you have agreed to pay it, and we dont have the exact dates and exchanges, so any litigation would have to sort that out. At best a Court would feel that a repayment plan entered into should stick as is.)

2.2 Legal Costs In the absence of any court award for costs and that I cnanot find in the lease any reference to the recovery of legal costs ( NB which would be unusual) there is no basis for these to be charged or treated as a debt. Should your clients be able to identify a basis for legal costs to be recovered under the lease then your clients should be aware that they are treated as admin costs, and any invoice msut be accompanied by the summary of rights for administration charges, while my invoices have only been sent with the Summary of rights for service charges. As a result( see earlier posts) I would assert my right to withhold any payment and reserve my position in regard to the rights explained therein.

That should make them explode.

You then write to your mortgagee and explain that you are in dispute over these charges and that you will keep them informed.

I might add Without prejudice to the above I am prepared to make repayments under the old schedule as agreed and current as agreed but in the circumstances nothing toward the legal costs.

[siva]

hi,
The service charge has gone in the past six years from about 715, 817,915 to 1070 (2013),
the yearly demand from old MA, new MA (2013-2014) came with summary of service charge and tenants rights and obligations.
Demand for arrears came with just summary of service charge.

From what you have told us I am not sure anything stands out as definitely being unreasonable (apart from the attempt to pass on costs). I'd send the request for a breakdown of costs though and you can come back for further advice.

I've also been investigating andydd's point about re-litigation after the case was struck out. I must admit I am unsure about this side of things and what I am finding does seem to contradict what I said earlier and does support what andydd was saying.

Have a read of this thread on the CAG forum. Several reference cases are quoted and squaddie gives advice that seems to support the fact that, even with a new managing agent bringing proceedings, they are no longer able to recover the amount in the original claim.

[andydd]

Even I'm getting a bit lost with this now.

Trying to summarize I'd say.

1. Do you wish to dispute the amounmt now claimed owing due to the fact that it appears to have already been litigated ?

2. Are the service charge demands valid ? (Complying with lease, times, certified, etc) and statute law (Summary of Rights, correct managment agent, etc).

3. Do you wish to dispute service amounts ? (Too high, work not of good standard, etc) ?

4. Are the extra legal, dca, costs, etc recoverable under the lease ? (From what you have posted, possibly not).

Andy

[wadada]

From what you have told us I am not sure anything stands out as definitely being unreasonable (apart from the attempt to pass on costs). I'd send the request for a breakdown of costs though and you can come back for further advice.

I've also been investigating andydd's point about re-litigation after the case was struck out. I must admit I am unsure about this side of things and what I am finding does seem to contradict what I said earlier and does support what andydd was saying.

Have a read of this thread on the CAG forum. Several reference cases are quoted and squaddie gives advice that seems to support the fact that, even with a new managing agent bringing proceedings, they are no longer able to recover the amount in the original claim.

Hi,

I also noticed that the opening balance from new MA is over £650 more than the last demand received from previous MA.

Thanks.

[siva]

Hi,

I also noticed that the opening balance from new MA is over £650 more than the last demand received from previous MA.

Thanks.

Write asking for a breakdown of service charges for each year, copies of (or access to as well as photocopying facilities) invoices/receipts/accounts and an explanation of anything that is unclear in regard to the amount demanded.

[wadada]

Even I'm getting a bit lost with this now.

Trying to summarize I'd say.

1. Do you wish to dispute the amounmt now claimed owing due to the fact that it appears to have already been litigated ?

2. Are the service charge demands valid ? (Complying with lease, times, certified, etc) and statute law (Summary of Rights, correct managment agent, etc).

3. Do you wish to dispute service amounts ? (Too high, work not of good standard, etc) ?

4. Are the extra legal, dca, costs, etc recoverable under the lease ? (From what you have posted, possibly not).

Andy

Hi Andy,
1. I dispute the total outstanding balance because it contains the amount that was struck out.
2. The service charge demands are valid and comply with the lease and statute laws.
3. I do not dispute the service amount
4. I do not see anything in the lease that deals with extra legal, dca, costs, etc
Thanks

[leaseholdanswers]

Hi,

I also noticed that the opening balance from new MA is over £650 more than the last demand received from previous MA.

Thanks.

Wadada- what is being lost here is the fundamental questions which I am not sure why we cant get an answer to.

First off Managing agents where there is a residents man co present DO NOT issue proceedings or a claim. The proceedings are issued by the client albeit by the arrangement of the agent and or solicitors or a DCA.

This is an important distinction as if the claimant was the old MA the the original claim was struck out but was flawed as they had not claim to those monies. it would be highly unusual for any arrangement to exist where the agent does issue proceedings.

Based on your post your decision seems to be as I have suggested in the
letter whether to agree to pay the old arrears under the whose arrangement, or if you are wanting to escape the old amount entirely, then you will have to let this go forward, or answer the question above.

If it was issued by the Man Co, not MA, then you have to pull out the papers and amend the letter accordingly and reply.


Once you have dealt with these issues you may have to allow it to go to the County court to determine the amounts your defence and even counter claim as Andydd will suggest , can deal with this at that time.


if there is a discrepancy in the bill then you have to go back as suggested and show where you have made payments that are not shown again as my letter suggests.

Please understand that it is a common mistake to treat bills as being from the old and new agent ala old utility supplier new supplier; but all service charges are due from your Man Co, the agents merely "keep the books" and look after its money, it is not theirs even though you cheques were made out to them. The current agents should have via the handover pack or old accounting record a ledger for each leaseholder and bank statement sin order to identify payments.

its all there in the earlier post good luck. You can of course suggest mediation and try and discuss this.

[wadada]

Hi, Below is a copy of the letter I want to write to the DCA

TO WHOM IT MAY CONCERN
Dear Sir/Madam,
I write in reference to your recent correspondence and raise the following issues in regards to your client's ( ------------------) claim. Please note that I do not agree or admit liability for the sums and reserve my right to have the amounts demanded determined:
There is an outstanding issue of an amount that was struck out by the ---------- County Court, Ref -----------------. By law, trying to reclaim this amount is re-litigation and will be deemed as an abuse of process. There is therefore a discrepancy with the total amount you are requesting for.
The Managing Agent, ----------------, as agent for your client, agreed either under their direction or in their capacity as agent into a payment plan of ----------- a month of which I started paying without fail to date. There is therefore no basis to your accusation that the amount remains in arrears despite formal requests.
It would be helpful if a copy of the breakdown of the statement can be sent to me, as it can be used to determine how the total outstanding balance was arrived at.
As a result of the following, I would like to assert my right to withhold any payment and reserve my position in regard to the rights explained therein.
Yours Sincerely.
-------------

Please feel free to correct any errors or let me know if I should add anything else.