Leaseholder cannot get information from tennant under LTA 1985

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    Leaseholder cannot get information from tennant under LTA 1985

    L = Landlord T = Tenant LTA = Landlord and Tenant Act

    T owns long lease in a flat in a block of 7 flats owned by L.

    L asks T for information regarding service charges and expenditure under Data Protection Act and any “other right of information access T is entitled to”. (Italics actual wording, so implicit request under S22 and S23 or LTA 1985, but not explicit). L ignores requests.

    The L does not send service requests or ground rent demands to T for 6 years, and then sends backdated demands £27,000 (approx) all at once.

    T asks for information regarding the £27,000 claim under pre-litigation protocols and information request is ignored by L. The claim was then abandoned by the L without informing the T

    About 18 months later the L makes demands for £6,000. T asks for information supporting the £27,000, and the £6,000. L claims to have lost all information regarding L did sends T information for a period going back 18 months covering the £6,000, but not the £28k for 6 years.

    The matter is now in the County Court.

    Questions:

    How does the T get information he is entitled to under S21 & S22 of the Leasehold & Tenant Act 1985.
    Is T entitled to withhold service charges for the 18 month period for which information has been provided until L sends him information going back 6 years?

    Does T have claim against L for harassment for not sending demands for 6 years then trying to charge all at once, and then abandoning claim?

    Does wording “other right of information access T is entitled to” in the context of making a request for service charge and expenditure information constitute a valid request under LTA 1985?

    #2
    Should the paragraph "L asks T for information regarding service charges and expenditure " not be "T asks L" ? The Title is confusing too !!

    Ill assume it does.

    Do the demands comply with the lease and the stat laws (i.e GR demands comply with S166, SC demands comply with S47/S48 (Landlords name/address) and include summary of rights).

    It is possible to recover GR going back six years (and doubt it could be classed harrasment), SC are a different matter, as the L is barred from recovering amounts older than 18 months UNLESS he has sent notification informing T of amounts incurred (see here > http://www.slcsolicitors.com/guide-view.php?guide_id=5).

    You say the first claim was abanded by L, but was an actual court claim started ?. The applicant cant discontinue a claim without costs consequences. See CPR 38 > http://www.justice.gov.uk/courts/pro...l/rules/part38

    He may also be barred from started the same claim again, as he appears to have done by starting the claim for £6000 (My L did this, I put in application for Summary Judgement to strike it out as abuse of process for re-litigation and his claim was struck out and i got costs).

    Unfortunatley there is not much you can do when L doesnt comply with S21/S22, it doesnt give you right to withold and in theory you can ask Local Authority to talke criminal action against them but it wont happen !..this has been discussed here before.

    If L has lost information about servbice charges he will have a hard time proving anything is owing at a court or if transfered to FTT.

    Id be looking at getting as much/all of his claim struck out.
    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


      #3
      At what stage are the county court proceedings?
      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


        #4
        The court case is in August, had pretrial review. The last claim was abandoned after I asked for information under pre-litigation protocols, I am not sure it was registered with the court. Does that still mean claimant breached abuse of process rules?

        Comment


          #5
          Originally posted by andydd View Post

          Do the demands comply with the lease and the stat laws (i.e GR demands comply with S166, SC demands comply with S47/S48 (Landlords name/address) and include summary of rights).
          The L demands for the £6000 do comply with S47/S48 , but the demand for £24,879 did not. In fact there were not service charge demands at all.



          Originally posted by andydd View Post

          You say the first claim was abanded by L, but was an actual court claim started ?. The applicant cant discontinue a claim without costs consequences. See CPR 38 > http://www.justice.gov.uk/courts/pro...l/rules/part38
          It appears not, the claim was abandoned at after T request for information under pre-litigation protocols, prior to actually starting a court action.

          But the L did attempt to charge T for legal costs, and then dropped the legal cost demands, and claimed he had lost them, along with the rest of the information regarding £24,000 claim

          The fact that he did not start court procedings, does this mean he can stop a claim without costs and it is not an abuse of court procedings?


          Originally posted by andydd View Post
          He may also be barred from started the same claim again, as he appears to have done by starting the claim for £6000 (My L did this, I put in application for Summary Judgement to strike it out as abuse of process for re-litigation and his claim was struck out and i got costs).
          Originally posted by andydd View Post
          Id be looking at getting as much/all of his claim struck out.
          Should I ask for my counter claims to be dropped, as I am trying to get the whole thing struck out

          Comment


            #6
            s.20B LTA 1985 means that a LL cannot recover service charge related costs incurred more than 18 months before they were first demanded. Should be open and shut.

            As to ground rent, each demand must be accompanied with a notice that complies with s.166 of the Commonhold and Leasehold Reform Act 2002. Until the demand complies with that section, the tenant owes nothing.

            Your FH just sounds like he is abusing court process to bully and intimidate you.

            I have been a long-time critic of s.21 LTA 1985 as the remedies are ineffective for non-compliance. You are basically stuck as the legislation currently stands.

            Your FH will not succeed in his claim without having to first prove that the amounts are owed and he is not barred by statute from recovering the,. From what you have said this seems unlikely. The only way he can get judgment is if it is entered in default (i.e. you fail to lodge a defence - very unfair on indigent litigants in my opinion).

            Before you consider summary judgment, you should also consider an application for security for costs (i.e. an order requiring FH to put up a bond to cover your expenses in the event he loses). You should also consult your local CAB or Law Centre for assistance, or pay for the services of a solicitor, if you can afford it - he may even agree to do some work for free or on a conditional fee agreement.

            Comment


              #7
              This is hard to judge without seeing the paperwork and in particular no explanation has been given as to directions from the PTR, nor do we know what your defense if any was.

              In that case I cannot suggest that seeking summary judgement or dismissal or abuse of process as there is measure of risk that you will be told " no" and stuck with defending your position. The other issues of harassment etc are not worth exploring focus on the problem.

              As to the earlier artless request for anything that you might have right to is not going to wash you must exercise your rights specifically not ask someone to in effect do that for you.

              Assuming a defense was filed then your next step is to contact the Court to ask for your defense to be amended so that the argument can be heard based on new information and the claimant has an opportunity to prepare their case in response, rather than air new arguments on the day.

              Using the information already stated by Dominic and Andydd ( and this should have been what was discussed at the PTR)

              -Ground Rent as long as the demand(s) comply with s 47 & 48 AND have notices under section 166 CLRA 2002, and is for 6 years it is best to admit this and offer to pay it. Even if they don't it might be prudent to do so just to move matters along. the Court will recognize your sensible approach. To avoid a judgement to pay in x days offering a bankers draft, not a cheque to the landlord in court means that the landlord is paid, and no judgement need be entered.

              -Service Charge

              Your response( to the extent that it applies) is

              1 That the demands do not include the S 47/48 information nor the summary of rights for service charges

              2 that the service charge has not been calculated demanded in accordance with the terms of the lease (you need to read your lease and explain the mechanics of the SC being demanded, for example, estimated in advance and billed for certain periods and any excess or deficit and how it is treated and refunded or billed) Your argument that they have not complied with their contractual requirements and must be required to do so in order for the claim to go forward- the court will usually adjourn the hearing for the landlord to comply.

              3 Then you spring the trap that any if the costs that they are claiming to which 1 and/or 2 applies, then under section 20b, there having been no prior notification or demand the costs that they can claim are limited to the current period, and the last accounting period, limited to 18 months, and are to be recalculated accordingly.

              4 You then ask for these to be calculated and billed as the lease requires ( including if relevant a certificate or auditors report as the lease sets out). Not all allow one off demands for actual costs and therefore if an excess can only be rolled into the next year then that might defer the time that he can bill you for them until later.

              5 You then argue that while it was artless your earlier enquiry was intended to get access to the invoices to which the costs relate to determine if the charges under s19 LTA 1985 are fair and reasonable, and would have been a request under section 21, LTA 1985, had you been aware at the time of exactly wast to ask for. NB print off the sticky the text in the green book in the court is the amended, enacted but not yet commenced text. The sticky is the exact text in force.

              You ask for the court to order either that they do prepare a statement under the Act and afford access to the invoices under section 22, or ( as they dont have to do that and arguably cant) that on production of the recalculated and re-billed costs that the court permit time and leave for the First tier Tribunal to Determine the fairness and reasonableness of the costs under section 19 and 27.

              So do read the stickies at the top of leasehold forum on bills being due and LTA 1985 and your lease fort top back so that you can argue this.

              -
              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


                #8
                If no actual court action was started for the first claim then no, none of the cpr rules have any effect and the claim wasnt 'Discontinued' it was just not actually started.

                Applications for summary judgement should only be used when you have proof that the claim has no merit and there are no issues to discuss, if there is anything doubt or issues to arge then it would continue to a full hearing.

                SJ applications are normally pre-allocation so the safety net of small claim no costs rules do not apply, although my reading of the cpr is that CPR 45 applies and the costs are fixed, so wont rise too high (although in my case, the Judge made no mention of this, nor did the other side and she limited my costs to the '3/4 of what a solicitor would charge', I was happy enough with this and got about £300 costs.

                LHA has listed some excellent points for your defence.
                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

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