GGrr..S47 of LTA 1987

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    GGrr..S47 of LTA 1987

    Here's an annoying LVT decision.

    http://www.lease-advice.org/decision...10000/9532.pdf

    The Tribunal conclude that all the service charges are payable and that the LH's must refund the FH his fees.

    But they also go onto to mention that none of the demands comply with S47, meaning that nothing is actually due, but they ignore this, mainly due to the fact that the LH didnt raise this as a defence.

    So there are some leasons here:-

    Seek advice before going to an FTT/LVT (The LHs here appear unrepresented).

    If you believe that there is any possible reason why you havbe the right to withold service charges, make sure its in your defence and I'd recommend getting in early with a Strike Out/Summary Judgement application* if at County Court or using the new FTT rule P9 to strike out the opposing sides case.

    * I had success with this, my FH agreed to withdraw his case and pay my costs, as a consequence it didnt go anywhere near the FTT (much to my relief).
    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.

    #2
    That would be overturned on appeal. S 47 is clear in that it is not a matter of entering it in a claim or defence but that until the information is furnished the amounts are as the Act says not due. This precludes the charges from being due and is not like the summary of rights, a rights to be asserted.


    shall be treated for all purposes as not being due from the tenant to the landlord at any time before that information is furnished by the landlord by notice given to the tenant.
    Worrying where a judge makes that determination.....


    Assuming that the other matters were raised and could be considered, the determination should be that the amounts determined that were not subject to such notice are not due until they do provide that info.


    All the LL need do is adjust the amounts and re demand accordingly.
    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


      #3
      I have read the case in depth and see nothing wrong with the result.
      ( But agree that the correct proceedures for demanding the service charges may not have been in order )

      The work wanted to be done, needs to be done, the council are near to sueing the freeholder for not haveing the funds to complete the works because the leaseholders refused to forward their service charges.

      This is typical of leaseholders that they think that by forming an RTM company, all the service charges will magically disappear.

      The leaseholders made the council write to the freeholder, because the freeholder had no money to carry out repairs.

      Typical of leaseholders trying to get away from their obligations of repairing a listed building by saying ( some ) "Ah, the prescribed information was not sent, or the font was size 9 and not size 10, we don't have to pay".

      And this is what happens, time and money is wasted in court rooms, and the leaseholders still have to pay, and because they tried to not pay, they now have to pay the freeholders costs, and rightly so.

      R.a.M.

      Comment


        #4
        Ram, I disagree with you here.

        The law is the law..S47 is clear in black and white. It cant just be ignored when an LVT feels like it, I'd agree with LHA that an appeal would have a very large prospect of success, this would appear to be the very definition that the LVT has erred on a point of law.

        I am one of the people you refer to as a 'typical leaseholderr' who has 'got away' with witholding service charges due to minor errors, BUT the laws have been made and they should be complied with, we would be in a right mess if Judges/Tribunal panels took it upon themselves to ignore legsilation when it suits, in this case S47 has been around for 28 years and many LVT's and Courts have concluded that amounts are not apayble until it is complied with, why not in this case ?

        You say that time and money has been wasted in courts and leaserholders still have to pay, again, I disgaree with this assumption, in my own case, I forced an early end to proceedings by appying for summary judgement, (this solely exists to bring an end to hopeless proceedings and thus save time & costs for all parties involved including the courts), as a result my FH's case was struck out for the minor technicalities you mention.

        Don't you think it is somewhat worrying that in this case the FH was sending invalid demands to leaseholders, you could assume that perhaps every service charge they sent was in fact invalid and they ran a very real risk of being unable to recover any service charges at all, again, in my scenario, my FH has clearly been sending invalid service charge to EVERY leaseholder, and he only corrected them when presented with the evidence as to why they are invalid by me, I could argue I have been doing him a service by informing him, unfortnately for him, it has cost him money by pursuiong me an ohers through legal action before checking his demands are actually correct.

        Finally the main reason I posted this thread as it shows yet another worrying inconsistancy by the FTT/LVT. What they should of done as LHA has mentioned is to continue to carry ou and determine the 'reasonableness' of the chanrges (I have no disagreement with this) BUT point out that nothing is payable UNTILL S47 is complied with, one would assume that this would easily be recitified *

        * I am in two minds as to whether this is the correct route, hence why in my similar case I made efforts to have the FH's case struck out early in the proceedings.
        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


          #5
          Aah but as I have explained before if the application to the FTT is worded to allow them to determine service charges there are often two aspects.

          1 fairness and reasonableness

          2 payability - horrid word but it is in common useage.

          So a suitably worded application can determine 1 but under 2 that they are not due. All the LL need then do is adjust the amounts and re demand accordingly.

          Where you suggest
          hence why in my similar case I made efforts to have the FH's case struck out early in the proceedings.
          Some proceedings might be struck out at application stage if they have not asked that the Sc be determined ( ie the "have or will be demanded" application)
          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


            #6
            You maybe right, maybe my FH's solicitor could of argued at the summary judgement hearing that the case should not be dismissed summarily and should go forward to a full hearing and maybe transfer to the FTT to discuss the reasonableness of future charges ? (i.e charges that maybe due should they be due should they be re-demanded with the correct paperwork).

            But I doubt he is knowledgable enough in Landlord & Tenant law and they simply decided to withdraw the case. (Well use a P36 offer).

            Cases like the one above do make me feel I took the correct course of action, (i.e get it struck out at the earliest possible stage and avoid the vageries of an FTT determination.)
            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


              #7
              Well no this was an FTT application not a court one. What I am saying is that the application can determine many things, not solely payability. if that was the sole basis then the OP would have one.
              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

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