Re-Issue of Demand which currently does not meet S.47 requirement

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    Re-Issue of Demand which currently does not meet S.47 requirement

    Can someone please advise if a new demand for payment of Service Charges can be issues after an application to the LVT has already been made. If was to win my case on account of the S.47 requirements not being met. Are the landlords then able to reissue the notice correctly and would I be liable to pay it. Unfortunately I have missed the 5pm cut off to allow me to call the Lease Advisory Bureau
    My hearing is next week

    Kind regards
    shearne

    #2
    I suggest you take the demand to the LVT hearing next week and let the Tribunal decide if it is correct to pay

    Comment


      #3
      Thanks Gordon for your response. Are they however correct in saying that they could regardless re-issue the Service demand correctly in future when I have already made the application. I thought not, however their solicitor has advised that that is what they will simply do now that they realise their mistake

      Comment


        #4
        Yes the LL can issue a new demand and it becomes payable. There was some dispute over whether costs incurred more than 18 months before the corrected demand were payable but case law has decided that re-issue of a corrected demand effectively fixes the original demand.
        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
          Thanks Siva, seems a bit of a farce to me, when it appears the lessees are in effect having to tell Freeholders how to do what they should have gotten correct in the first instance and it almost negates the need for an LVT application, where it's a requirement to state why costs are being challenged.

          Comment


            #6
            Well you don't have to challenge the demands. You can pay them without the required info.

            If you have already given the LVT (Now called something different) a reason and that is the only reason then I'm surprised they didn't arrange a Pre-Trial Review (Now called something different) and get the matter sorted without the need for a proper hearing etc.
            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


              #7
              In theory I believe an LVT 'should' just say the demand is not payable now go away and if a second application is needed so be it but LVTs generally go ahead on he basis that a valid demand will be re-isued at some point (but this is not guarenteed of course) and they determine the resaonableness of the amounts. Personally I think this is wrong and the LVT should not be assuming that crtain things will be done in the future and part of the reason they do this is because of the delays in tribunal hearings, etc.

              Im trying a different tactic in my case, my FH has counterclaimed for service charge amounts but Im about to make an application to county court for summary judgment pointinmg out that as it stands now, the FH has no legal basis for his claim, his demands are not valid and I owe nothing. (He then may or may not be allowed to make a second claim after/if valid demands are sent.

              Summary Judgement if you are unaware is to get a case struck out early on if there are no facts to argue over.
              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


                #8
                Andy is essentially correct they would determine that the demand is not due and while in the past they would have taken that tack as he suggests, they are unlikely to now as it goes beyond the issue put before them.

                They will however not be too pleased under the new rules at having to determine this matter, not withstanding, that the problem has been rectified as had to you given notice of your intentions under a letter before action, it would have been remedied without further need to act( hopefully)

                I would look at withdrawing the application and addressing the underlying issues, unless they are already part of the application eg challenging the costs or other issues.

                The purpose of S47 and 48 is not to kill a demand but to ensure that a tenant with an issue or greivance has the ability to identify and contact, and serve, a LL, not makes bills and the amounts therien vaniish. The same applies to the summary of rights.
                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
                  Technically speaking the First-tier Tribunal of the Property Chamber (formerly LVT) cannot decide an issue that is not put before them but this has rarely stopped them in the past. In the last year or so there have been a few Upper Tribunal cases where LVT decisions have been overruled on the basis that they have gone beyond what was claimed or defended during the cases. This may or may not stop them from carrying on the way they used to. I suspect that in general they will carry on and if applicants/respondents don't like it then they can appeal.

                  One of the things an LVT can decide is when a service charge becomes payable. The application form doesn't really steer applicants in the direction of asking this question so I imagine it is rarely asked. In my first LVT case I did not mention that the demands were invalid but the LVT decided to point out that payment was only due when a valid demand was made. They weren't really supposed to do this but let's get a life here.

                  In the case you (shearne) are involved in, what did you ask the First-tier Tribunal of the Property Chamber to decide? If you just asked 'the amount which is payable' then another application is possible to ask 'the date at or by which it would be payable'. The LL or yourself can make the application.

                  It's all a bit of a mess really.
                  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


                    #10
                    Originally posted by siva View Post
                    Technically speaking the First-tier Tribunal of the Property Chamber (formerly LVT) cannot decide an issue that is not put before them but this has rarely stopped them in the past. In the last year or so there have been a few Upper Tribunal cases where LVT decisions have been overruled on the basis that they have gone beyond what was claimed or defended during the cases. This may or may not stop them from carrying on the way they used to.
                    That would be wrong Siva, the guidance, arising from the UT decisions and the new regulations, are already out
                    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
                      That would be wrong Siva, the guidance, arising from the UT decisions and the new regulations, are already out
                      Which bit is wrong and what do the regulations say on that point?

                      I presume you mean the regulations found here? I can't see anything obvious that deals with the points I was making. There's also a comment on the new regulations by Nearly Legal which doesn't mention anything I can see that relates to what I was saying.
                      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


                        #12
                        In my application I challenged the reasonableness of the management fees on account of them being in breach of the lease by about 7 years, having not maintained the property in accordance with the lease which had resulted in the property being in a serious state of disrepair. In my application I also added and the cost of the maintenance charges if they had not been served correctly e.g. missing landlord's address etc. I have over the weekend been offered a 50% reduction of the management fee and told if I do proceed with the hearing and they lose that they will seek to recover their costs through future service charges

                        Comment


                          #13
                          Originally posted by siva View Post
                          Which bit is wrong and what do the regulations say on that point?

                          I presume you mean the regulations found here? I can't see anything obvious that deals with the points I was making. There's also a comment on the new regulations by Nearly Legal which doesn't mention anything I can see that relates to what I was saying.
                          What is wrong is assuming that the FTT will stray beyond what is put before them. The intial directions and case management by the FTT is intended to beat the application and response into shape and theerby achieve the objectives in the Regs you have linked to by ensuring that the case is ready to be heard.

                          The days of pitching up with a shoe box of receipts or a faded fax found "last night" and a stolling expert to give evidence there and then, are long gone.

                          Not all guidance and procedures are in the public domain...... NL might draw conclusions but don't have the luxury of actual, and considerable, practice in this area as we do.
                          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 shearne View Post
                            In my application I challenged the reasonableness of the management fees on account of them being in breach of the lease by about 7 years, having not maintained the property in accordance with the lease which had resulted in the property being in a serious state of disrepair. In my application I also added and the cost of the maintenance charges if they had not been served correctly e.g. missing landlord's address etc. I have over the weekend been offered a 50% reduction of the management fee and told if I do proceed with the hearing and they lose that they will seek to recover their costs through future service charges
                            How do they intend to recover their costs through future service charges? They can only charge you reasonably incurred costs and reasonable amounts. They may be trying to argue that you refused an offer which you didn't bettervia the tribunal decision.However their offer is very late in the day and I have seen that turning down such offers are not looked on in the same way as early offers. Perhaps you can also negotiate them paying your costs @ £18 per hour which is what the courts will pay LIP's. Or are you represented? If so then make sure they pay your costs as part of any settlement.

                            You need to make a s20C application so that the cost of their proceedings cannot be passed on to you. You can do this verbally at the hearing if you didn't do this on the application. Make sure this isn't forgotten about.

                            Managing Agent fees in my case were reduced to £200 per year because of poor management. If you're happy with a 50% reduction then settle but make sure you have something in writing before failing to turn up at the hearing.
                            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


                              #15
                              Originally posted by leaseholdanswers View Post
                              NL might draw conclusions but don't have the luxury of actual, and considerable, practice in this area as we do.
                              The conclusions are all mine, I was just pointing to NR's discussion of the regulations to clarify that there are no new regulations that relate to your point. I stand by my conclusions and they are based on personal experience and things that I have read over the last 5 years. I wasn't suggesting that FTT's will do as they please but that I wouldn't be surprised if they make decisions they are not supposed to at times. There have always been regulations and they have been ignored (at times) so it would be sensible to assume that new ones will be ignored (at times) too.

                              Also, the new regulations don't really address the subject we were discussing. The fact that LVT's will go beyond their remit in terms of the decision. There's nothing in there that would make the FTC focus on the application any more than the LVT had to. I don't really see the new regulations making a difference in terms of the problem (some would say it wasn't a problem) I pointed out. There are a few more options in terms of disputing decisions but you could always appeal to the UT under the old regulations anyway

                              Perhaps there is some guidance that is not in the public domain. We will have to wait and see but my early observations up here in the North are that the FCC don't seem any different. They have different names for things and some more powers but it's the same people you are dealing with.
                              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

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