Law of Property Act 1925: Notice under s.146

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  • Law of Property Act 1925: Notice under s.146

    I have been advised by the Solicitor to serve a Section 146 Notice, as mediation hasn't worked.

    However I see from various websites that I can only serve a s146 if the breach has been determined by the LVT, or admitted by the Leaseholder (this isn't going to happen).

    Can someone explain the s146 procedure in simple terms.

  • #2
    s.146

    Originally posted by Donkin View Post
    I have been advised by the Solicitor to serve a Section 146 Notice, as mediation hasn't worked.

    However I see from various websites that I can only serve a s146 if the breach has been determined by the LVT, or admitted by the Leaseholder (this isn't going to happen).

    Can someone explain the s146 procedure in simple terms.
    I'd be surprised. The section runs to 13 subsections, there are over 100 cases reported in Law Reports as to its efect, and four other Acts limit its scope!
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


    • #3
      Law of Property Act 1925: Notice under s.146

      Hi,

      My lessor issued me with a bill for Ground Rent and buildings insurance in April, and unfortunatley the payments didn't go through. The bank didn't write to me and neither did my landlord. I noticed the problem when looking at my internet banking and immediatley re-issued a cheque.

      I have now received a Notice under section 146 of the law and property act 1925 where the landlord has added on interest at 5.5% so that's £2.11, which I dont mind, but also a penalty charge of £400. It says in the lease that he is allowed to charge for costs, but as far as I can see this notice has been written in his office and apart from paper and stamps and a couple of man hours it cant have taken that much money to process it. Can he charge whatever he wants, can I ask for a breakdown of the costs he is claiming in compensation from me and do I have any rights at all in this?

      Help please!

      Comment


      • #4
        Originally posted by arwen View Post
        Hi,

        My lessor issued me with a bill for Ground Rent and buildings insurance in April, and unfortunatley the payments didn't go through. The bank didn't write to me and neither did my landlord. I noticed the problem when looking at my internet banking and immediatley re-issued a cheque.

        I have now received a Notice under section 146 of the law and property act 1925 where the landlord has added on interest at 5.5% so that's £2.11, which I dont mind, but also a penalty charge of £400. It says in the lease that he is allowed to charge for costs, but as far as I can see this notice has been written in his office and apart from paper and stamps and a couple of man hours it cant have taken that much money to process it. Can he charge whatever he wants, can I ask for a breakdown of the costs he is claiming in compensation from me and do I have any rights at all in this?

        Help please!
        1. Is this a house, flat, or commercial property? The legal position can differ between them. For instance, g/r is not deemed due unless a Notice under s.166 of Commonhold and Leasehold Reform Act 2002 is served by L, but this applies only to "..a long lease of a dwelling..."
        2. Section 146 of the Law of Property Act 1925 does not apply to rent arrears, so L's fees in issuing an inapplicable notice should not be recoverable.
        3. What precisely does your lease stipulate? Tell us the EXACT wording which you think may allow L to charge for costs.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


        • #5
          It is a one bedroom flat which we bought in October 2001. The lease was 87 years at that point.

          The wording is as such;

          Cover letter..
          "As you are aware we act on behalf of the Lessor of the above property who has instructed us to serve you with a section 146 notice under the law of property act 1925 for breach of covenants of your lease. Full settlement of this account in the sum of £771.72 is required within the next 28 days to avoid action for forfeiture of your lease.

          A copy of this notice has been served to your Mortgagees XXXXXXXXX who have registered a charge dated 27 June 2003 on title number XXXXXX."

          Notice:

          "1. By the above mentioned Lease covenanted for them and their successors in title the manner following, that is to say, interalia:-
          (i) by clause 1 (14) of the said lease to pay all expenses (including solicitors costs and surveyors fees) incurred by the Lessor incidental to the preparation and service and notice under section 146 of the law and property act 1925 not withstanding that forfeiture is avoided otherwise than by relief granted by the court.
          (ii) by clause 1 (1) of the said lessee hereby covenants with the Lessor as to pay the rent and further insurance rents reserved at the times and in the manner aforesaid without any deduction or abatement.
          (iii) at all times to keep the interior and the exterior of the demised premises in good decorative condition.....etc

          2. You are in breach of the above covenants as follows:-
          You have failed to perform the following obligations and pay your contributions and costs under clause 1 (1) and clause (5) of the lease referred to above:-

          (a) you have failed to pay the rent due for the period xxxxxxxxxxxxx in the sum of £50

          (b) you have failed to pay your share of the insurance premium for the period xxxxxxxxxxxxxin the sum of £319.61

          (c) under clause 3(d) interest at 5.5% for 38 days being £2.11

          (d) Costs incurred in the preparation of this notice under section 146 of the law of property act 1925 served on the 24th May in the sum of four hundered pounds £400.

          3. Clause 3 (a) of the said lease contains a proviso that this Lease is made upon condition that if the rents reserved or any other part thereof shall at any time be unpaid for twenty-one days after becoming payable whether formally demand or not or if any of the covenants on the Lessee's part herein contained shall not be performed or observed then it shall be lawfull for the lessor at any time there after to re-enter upon the demised premises or any part thereof in the name of the whole and therupon this demise shall absolutley determine but without prejudice to the right of action of the lessor in respect of any antecedent breach of the lessee's covenants herein contained."

          It carries on to say we have 28 days to pay before they enter the premisies. It may also be worth mentioning that as we have had trouble before, the landlord has never sent the demands at the same time of year before, and as we had a clash once about the ground rent, we now send it yearly in May when due, but he never cashes the cheque, and this time he even sent it back to us from last May with the demand covering 06 - 07 ground rent and 06/07 insurance and asked for the total amount.

          Thanks for your help

          Comment


          • #6
            How many flats are in the block ? Have you asked other flats if they have the same problem which you experience now ? Is your landlord a person or company ? are you dealing direct with the landlord or thru his agent ?

            When you say the landlord has previously refused to cash cheque paid for 50 pds ground rent, it suggests it is a deliberate action to extract a 400 pds penalty charge from you. What is the name of your Landlord ?

            Comment


            • #7
              On clause 1(14) of lease, were the s.146 Notice and letter written in L's office (as you first suggested) or by his solicitors?
              If former, what "expenses" can L have? No solicitors, so no legal fees.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment


              • #8
                Thanks guys,

                He is a single person as lessor with his own management company. The section notice has come from his company with the same letter head, but legal department written on it as well and from a different person, definatley not a seperate solicitor.

                There are three flats in my block and I unfortunatkey dont have a very good relationship with the owner upstairs, it took her 4 months to fix a leak from her bathroom when my kitchen ceiling fell in. But i do know that she has had trouble with him before, she rents the flat out and he was sedning the service charge to the flat and not her designated property and so I think she has also been slammed with one of these too. they are quite aggressive and I think she just paid up in the end to get them off her back. The lady who owns the top flat wouldn't say boo to a goose and it wouldn't surprise me if she just writes the cheque everytime. I do also know that we never get our service charge demands at the same time. ie ground rent is due May, the insurance re-news each June, so why dont we get the demand in full in June, it's never at the same time. One time he hadn't charged us for 2 years worth and so it all came at once which was very expensive, last time he tried to charge us a £200 service charge on top of everything else and when we queried it he said that he had been under charging us for the insurance and that he would now charge us the full amount for the building, not our third, and threatened us with legal action if we didn't pay up, that's when we got our solicitor involved. I dont undertand what the point is other than something dodgy in not sending the demands when due and not paying in the ground rent cheque. the time before last he didn't even acknowledge it or send it back, this time as he sent it back - why? I really think something very dodgy is going on here. Also another thing, we are on a sub lease. he is only the middle man, a guy who owns the shops at the front owns the freehold.

                I'd rather not say his name in the forum, but I can IM it.

                Thanks again for your help, going to check and see if my solicitor has emailed me back.

                Comment


                • #9
                  My Solicitor has said what I originally thought, that we have to pay Solicitors costs for serving the notice, but that as it wasn't from a Solicitor bit from a legal department then this is an escessive charge. He has suggested that I go to the Leasehold Valuation Tribunal.

                  Comment


                  • #10
                    Notice under s.146 of Law of Property Act 1925

                    Where a Formal notice is served by a landlord on a leaseholder under Section 146 of Law of Property Act 1925 and its contents are factually wrong, what should the leaseholder do aside from writing back stating the errors of fact - should the leaseholder for example apply to the court to set aside the Formal Notice (like how you do where a incorrect stautory demand is served for debt purposes).

                    Comment


                    • #11
                      Originally posted by DBEGoodman View Post
                      Where a Formal notice is served by a landlord on a leaseholder under Section 146 of Law of Property Act 1925 and its contents are factually wrong, what should the leaseholder do aside from writing back stating the errors of fact - should the leaseholder for example apply to the court to set aside the Formal Notice (like how you do where a incorrect stautory demand is served for debt purposes).
                      See s.146(2). Your remedy, as lessee, is relief on grounds of the inaccuracy. This applies "where a lessor is proceeding, by action or otherwise, to enforce...a right of re-entry or forfeiture..."; it applies whether lessor is suing lessee (i.e. as lessee's defence) or -if lessor is taking unilateral action- in lessee's own action against him.
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                      • #12
                        Where you say:-
                        "See s.146(2). Your remedy, as lessee, is relief on grounds of the inaccuracy."

                        Does that mean an application has to be made to a county court? or can writing to the landlord on its own be sufficient? If it has to go the court route, what is the name of the exact action that has to be commenced? (i.e. injuction or...)

                        Comment


                        • #13
                          Originally posted by DBEGoodman View Post
                          Where you say:-
                          "See s.146(2). Your remedy, as lessee, is relief on grounds of the inaccuracy."

                          Does that mean an application has to be made to a county court? or can writing to the landlord on its own be sufficient? If it has to go the court route, what is the name of the exact action that has to be commenced? (i.e. injuction or...)
                          Either. Yes, of course try contacting L.

                          However, L may use:
                          a. Court action; or
                          b. unilateral action (e.g. physical re-entry).

                          T (=you) must either:
                          a. defend L's Court action; or
                          b. start your own against his unilateral action.
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                          • #14
                            "T (=you) must either:
                            a. defend L's Court action; or
                            b. start your own against his unilateral action."

                            Starting my own unilateral action sounds the best way forward as the landlord isn't accepting my points and in the s.146 notice HAS THRETEND to physical-rentry.

                            So, do I need to apply to the county court for an injunctie application or...? Basically it would help greatly if I knew the name or number of the court form to fill out and attach my affidavit as part of it.

                            Comment


                            • #15
                              Originally posted by DBEGoodman View Post
                              "T (=you) must either:
                              a. defend L's Court action; or
                              b. start your own against his unilateral action."

                              Starting my own unilateral action sounds the best way forward as the landlord isn't accepting my points and in the s.146 notice HAS THRETEND to physical-rentry.

                              So, do I need to apply to the county court for an injunctie application or...? Basically it would help greatly if I knew the name or number of the court form to fill out and attach my affidavit as part of it.
                              Sorry, but I can't help on this; I do not deal with litigation. Consult your own solicitor- DiY is a bad idea in this situation.
                              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                              4. *- Contact info: click on my name (blue-highlight link).

                              Comment

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