service charge issues

[wadada]

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.

hi,
1. I do not dispute there is an arrears on the account
2. The claim was taken to court by the old MA and it had their own name as the claimant (not the Management Company)and this claim was struck out by the courts.
3. The new MA took over the arrears, and I had a verbal agreement with them to pay a certain amount each month, which I did without fail. This amount included in part the amount that was struck out by the courts
4. I recently got a mail from then opting to triple the monthly repayments to clear off the arrears faster, of which I could not afford.
5. They then sent the total amount including the new SC (which is not due) to a DCA, who have now added their own costs and charges to teh amount.
6. There are also other discrepancies which I do not agree with and some payments I have made, not reflected in the outstanding balance.

[andydd]

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

Hi.

The thing is though your first post you said you disputed some of the original service charges but now say you arnt disputed them.

It is foolish to not pay service charges unless you are using one of the two clear reasons to with hold (these are S21 no summary of rights and s47/48 of LTA 1987 regarding Ll names and address), as this can lead to all sorts of problems including losing your property.

Now, (maybe) luckily for you, the FH/MA made a hash of the first court proceedings, which may allow you to use the re-litigation/abuse argument (something I have done, my FH's solicitor's cockups has cost them £2500).

As also mentioned your agreement to pay off some of the debt may cause problems, although I cant say for sure.

Andy

[andydd]

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.

Well..IMO.

Id change the By law bit to something like "I remind you that the amount of £xx has already been the subject of litigation in xx/xx/xx where the claim (No. xxx) was struck out, it would be an abuse of process to attempt to re-litigate."

I'm not sure if the payment plan is a legal agreement or just informal, in any event they may well be within their rights to refer to the amount owing as arrears, so I'd leave out that bit unless you can show that its is a legally binding agreement (As an example, I was paying off an old Egg card at £1 a month, but they then sold it to a DCA who chased me for the full amount, something I believe they are entitled to do).

Yes, its good to ask for a breakdown of amounmts, etc

As far as I can see the last sentence is wrong, you have no right to withold charges at all, you may have a defence that they any further legal action would be re-litigation and an abuse of process, BUT this is NOT a right to withold.

And add to your letter, "You have added on amounts for legal fees, DCA's etc, please can you tell me the clause within the lease that allows you such recover these costs via the service charge".

Andy

Andy

[leaseholdanswers]

hi,

2. The claim was taken to court by the old MA and it had their own name as the claimant (not the Management Company)and this claim was struck out by the courts.
3. The new MA took over the arrears, and I had a verbal agreement with them to pay a certain amount each month, which I did without fail. This amount included in part the amount that was struck out by the courts
4. I recently got a mail from then opting to triple the monthly repayments to clear off the arrears faster, of which I could not afford.
5. They then sent the total amount including the new SC (which is not due) to a DCA, who have now added their own costs and charges to teh amount.
6. There are also other discrepancies which I do not agree with and some payments I have made, not reflected in the outstanding balance.

1 Still not sure you are getting the point.... I am going to assume you are not saying there arrears because "i wasn't happy with the cleaning "
2 Ok then the Man Co ( not the MAs old or new) can claim these as there was no basis for the old MA to claim these in their name (in theory there may be but it is extremely unlikely).

3: No they don't take them on, the arrear are yours and are due to the Man Co irrespective of who the agent is- they as explained are just "keeping their ( the man Co's) books"
In your reply you will have ot point to the agreement and who it was with.

4: understood and I have suggested the reply - it was good enough then and should be binding, if you ( the MA ) made a bad deal...

5 & 6 noted and I have explained how to address these.....

So as said you are going to have to decide what you want to achieve- the old deal or argue that old deal aside the amount was struck out and take that to the court to determine.
Your letter is not clear as it suggests that yu want to maintain a payment schedule for a total pre struck out amount.

You need to specify that of £x, £y was struck out = £Z of which you are paying £a ,and therefore £b is outstanding, which does not reflect payments that have been made.

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.

You have complete ignored the basis for any withhold or the explanation in relation to costs which you say have been claimed. Why?


time to get off the fence W.

[wadada]

The thing is though your first post you said you disputed some of the original service charges but now say you arnt disputed them.

I think you misundertsand. I dispute the total amount they are requesting because there are some charges that are not correct, including the amount that was strauck out by the courts. I do not dispute that i am infact in arrears on the service charge.

[wadada]

Well..IMO.

Id change the By law bit to something like "I remind you that the amount of £xx has already been the subject of litigation in xx/xx/xx where the claim (No. xxx) was struck out, it would be an abuse of process to attempt to re-litigate."

I'm not sure if the payment plan is a legal agreement or just informal, in any event they may well be within their rights to refer to the amount owing as arrears, so I'd leave out that bit unless you can show that its is a legally binding agreement (As an example, I was paying off an old Egg card at £1 a month, but they then sold it to a DCA who chased me for the full amount, something I believe they are entitled to do).

Yes, its good to ask for a breakdown of amounmts, etc

As far as I can see the last sentence is wrong, you have no right to withold charges at all, you may have a defence that they any further legal action would be re-litigation and an abuse of process, BUT this is NOT a right to withold.

And add to your letter, "You have added on amounts for legal fees, DCA's etc, please can you tell me the clause within the lease that allows you such recover these costs via the service charge".

Andy

Andy

Thanks Andy, I'll ammend as suggested

[wadada]

I'm not sure if the payment plan is a legal agreement or just informal, in any event they may well be within their rights to refer to the amount owing as arrears, so I'd leave out that bit unless you can show that its is a legally binding agreement (As an example, I was paying off an old Egg card at £1 a month, but they then sold it to a DCA who chased me for the full amount, something I believe they are entitled to do).

Andy

The payment plan was a verbal agreement, and the only proof of that agreement was a recent letter they sent stating they will no longer accept the plan

[leaseholdanswers]

A verbal agreement is ans binding as a written one, the only obstacle is that there is no written agreement as verification and you will have to rely on the fact that payments were agreed and accepted. Your amendment should also include costs, and still ignores that the original agreement was inclusive of an amount subsequently struck out, that would therefore significantly "improves" the payment plan as the amount owed is surely now much lower...

[siva]

This is all getting a bit messy.

If it was me I'd just be writing to clear up exactly what has gone on so you are in a position to dispute. Don't say too much about your arguments until you are clear about what has been demanded, paid, etc.

In regard to the dispute over re-litigation and it being an abuse of process, I would say I don't think the wrong party bringing the case is fatal to that argument. The correct party can join the case at any time so I really don't see why the managing agent bringing proceedings on behalf of the property management company should work in the claimants favour.

wadada, look up the principle of equitable assignment. I researched this some time ago when the wrong party brought proceedings against me but can't find all the bookmarks I saved. I've just found this supreme court case where the principle is discussed in paragraph 2.

[wadada]

This is all getting a bit messy.

If it was me I'd just be writing to clear up exactly what has gone on so you are in a position to dispute. Don't say too much about your arguments until you are clear about what has been demanded, paid, etc.

In regard to the dispute over re-litigation and it being an abuse of process, I would say I don't think the wrong party bringing the case is fatal to that argument. The correct party can join the case at any time so I really don't see why the managing agent bringing proceedings on behalf of the property management company should work in the claimants favour.

wadada, look up the principle of equitable assignment. I researched this some time ago when the wrong party brought proceedings against me but can't find all the bookmarks I saved. I've just found this supreme court case where the principle is discussed in paragraph 2.

Hi
It might sound messy, but I am only mentioning re-litigation because they mentioned taking it to court. The letter to the DCA is just to tell them that because some of the debt is disputed (struck out, extra costs etc), there are discrepancies in what they are asking. I would therefore like my statements to clear up the discrepancies.
Thanks for your help

[siva]

wadada, I've had a rethink taking into account that you do not wish to dispute the amount of service costs.

I believe that the advice you have had re. re-litigation after striking out being an abuse of process is correct. I don't think the original case being brought by somebody with no right to sue is an insurmountable problem as I think a Judge would assume the MA at the time was acting on behalf of the party with a right to sue and that all that was required was that the correct party joined the case at some point.

The problem I see for you though is that any new case would probably not be seen as re-litigation. It would be a case brought in regard to the verbal agreement you made which acknowledged the debt and promised a monthly payment with a review after one year in regard to payments. With this only being a verbal agreement the other side will have difficulty proving anything you dispute. However I believe that by showing a Judge 12 payments of £100 from you will convince the Judge that there was an agreement of some sort unless you can explain the payments some other way.

I doubt they will be able to prove that there was an agreement to review payments with their decision being binding.

I would therefore forget about the re-litigation defence because as of yet there is no re-litigation. I imagine any case they bring will be based on the agreement plus costs and new service charges that have not been paid.

I would write to the MA and DCA, keeping signed copies of your letters and proof of posting, and point out to them the terms of your verbal agreement, mentioning whether it included an agreement to pay their costs or not and what your understanding was in regard to any review that was agreed to (e.g. that both sides had to agree to any proposed increase).

Ask for them to clarify in regard to anything you are unsure about.

If you feel you are in a position to do so, make an offer but remember you will be bound by it if you later go to Court. If you are actually prepared to make a better offer to keep the matter out of Court then you can send that offer too but label it "without prejudice save as to costs". Any offer can be dependent on them proving something you are unsure about. So you could say I agree to pay £XXX and agree to pay £YYY if you can demonstrate such and such. That way you can make an offer before everything is clarified (which might not happen seeing as you are dealing with a DCA).

Good Luck.

[leaseholdanswers]

Hi
It might sound messy, but I am only mentioning re-litigation because they mentioned taking it to court. The letter to the DCA is just to tell them that because some of the debt is disputed (struck out, extra costs etc), there are discrepancies in what they are asking. I would therefore like my statements to clear up the discrepancies.
Thanks for your help

That's why it is crucial to set out all your issues and position in the opening reply once you decide which path you are going to argue.

It is vital to correspond only with the DCA with copies to the MA and the Man Co as they are following a procedure and process which will be further confused if there are two sets of parallel correspondence.

[wadada]

That's why it is crucial to set out all your issues and position in the opening reply once you decide which path you are going to argue.

It is vital to correspond only with the DCA with copies to the MA and the Man Co as they are following a procedure and process which will be further confused if there are two sets of parallel correspondence.

Should I sign the letter to the DCA or is just printing my name enough?

I am sending the letter to the DCA and copying the MA. ( the DCA stated that I shouldnt correspond with the Man Co)

[leaseholdanswers]

Should I sign the letter to the DCA or is just printing my name enough?

I am sending the letter to the DCA and copying the MA. ( the DCA stated that I shouldnt correspond with the Man Co)

if you are posting it why not sign it???

Which is what I was getting at earlier and why I said what I said about corresponding with the DCA alone. Copying the MA and the Man Co means that they see the letter at the same time and have the opportunity to consider your points while the DCA refers back to them for instructions.

[wadada]

if you are posting it why not sign it???

Which is what I was getting at earlier and why I said what I said about corresponding with the DCA alone. Copying the MA and the Man Co means that they see the letter at the same time and have the opportunity to consider your points while the DCA refers back to them for instructions.

Thanks. would do as you suggest.