Outcome of previous query

[shuey]

Dear LLZ members

I have a bit of a predicament id be really grateful for some advice on. Freeholder has billed me to the sum of £1140 for 'essential' repairs he has paid out of personal pocket for a leak that occured earlier in year. This works consists of installation of a shower screen to my leasehold flat (£250) and repair of ceiling of flat below and investigation of potential wet rot (£910). The leak was caused by a tenant and water escaping from accidental mis-use of the shower screen. The tenant denies this and is leaving the flat soon (tenant owes arrears and so protected deposit is being used to pay these). The tenant strongly denies causing the leak, despite me having 2 separate emails from 1. the insurance company surveyors 'this is an issue with the tenants and should be raised with them' and 2. My plumber to investigate the leak advising me of ' floor tiles around the bath where wet and the mat was soaking wet.
This would only happen if the tenant showers with the shower screen outside of the bath'.

The freeholder is a nightmare to deal with generally. He is stating I am ultimately responsible for any tenant I choose to let out to. He feels I am solely to blame for the faulty installation of a defective shower curtain and has stated that he does not hold the tenant responsible but me.

I agreed (to minimise any future leak incidents) in advance to pay for the shower screen part which im still happy to do but the remainder is a shock and I cannot afford to pay this amount. The insurance company is refusing to pay the remainder part as their surveyors have stated it is not covered under the block policy.

Please can someone advise on what is best course of action.

Thanks in anticipation for any advice.

[leaseholdanswers]

This is a truly horrible problem. In simple terms, fault has been established by the surveyor/assessor for the insurance company, and the landlord has a case against both of you, and you against the tenant, which is resolved in the tort of negligence, in particular contributory negligence.

It will depend on the terms of the lease, the terms of the under letting, particularly if there is a deed of covenant between the renting tenant and the freeholder, and who knew what when and who told who what to do.

This is not uncommon especially with foreign tenants who expect or assume that a tiled floor or bathroom is waterproof, when, in the UK, they rarely are. I’ll never forget the time a flat owners staff (a Saudi family with what turned out to be slave labour) washed the bathroom floor with a bucket of water and sluiced it down the pipe work void, laying waste to the flats below.

I would be looking at the policy (use the section 30a rights see my sticky on the insurance threads) and see if trace and access is covered.

I am not sure what bits they are refusing to pay for, and I assume its the investigations for rot, but that opens a new issue of whether that is recoverable from you directly or as part of the service charge, and whether it was a reasonable act and in turn cost, or even if the floors or walls are demised to you, for you to check, not him.

The assertion that it was defective is also open to question as any screen or curtain can be left open or over a bath through mistake, carelessness, being foreign, or just being an arse

As you can see, its one where the arguments can be settled, but the legal cost to do so will exceed the costs at issue. I would be tempted, subject to reviewing all of the above, on the information posted so far, to think about keeping the deposit for the costs claimed, if you are prepared to pin your claim on the leak being caused by his behaviour, and sue him for the arrears via an online money claim.

[shuey]

Thank you leaseholdanswers for your detailed reply. Strangely enough the bathroom floor seems tiled in appearance and thus it is quite plausible that the tenant (foreign) would assume to appear waterproof.

I have taken a copy of the policy documentation and the insurance policy does provide for locating the source of the damage (which in this case was the tenant ), any damage in searching for the leak and damage caused by escape of water is covered according to the policy. From the lease the floors and ceiling are demised to me. Also, as far as I am aware there is no deed of covenant between the tenant and the freeholder. The freeholder merely agreed to allow me to let out the flat when I purchased it.

Since the posting I have heard from the tenant who is expecting her deposit back in full in cash on check out date and also have learnt that she is colluding with the freeholder to endeavour to hold me responsible for a defective shower curtain.

The freeholder is saying the shower and taps are incorrectly located and poorly designed and that although he acknowledges I didnt install the taps as I am the leaseholder currently so he holds me responsible. However it was he who designed the bathroom originally 6 years ago when he converted the building into flats and so the design of the shower area and location of taps was down to him . Does this influence things?

[leaseholdanswers]

If the floors and ceiling are yours, what about the intervening floors? If they are concrete then they needn't be checked for rot and if they are timber who is responsible for them? You can see that I am trying to explore the angle that if they are yours to look after the freeholder has no business incurring that cost.

I am surprised that where trace and access is allowed that the insurer will not pay out for investigation to ensure that the timbers have dried out.

If the tenant wants the deposit back on check out then you have to think about what you are going to do about the arrears and be prepared to exercise a claim under which ever scheme you are registered.

Whether it is defective is a matter of fact and whether they notified you of the problem. The insurers surveyors report will assist. As long as the installation complies with building regulations that is ok, but its not uncommon for these to be poorly designed - a 50 cm or 75 cm screen will not stop a lot of water getting onto the floor, and that the freeholder installed the system originally is not going to help their case on either front.

It is hard to pin this down for you without full knowledge of the facts so I can really only point the way to explore and let you conclude the best option. In this case rent not being paid has nowt to do with the other issues, chase for that and push on with a claim.

[shuey]

thanks

I am planning to pursue tenant for arrears and any check-out damages.


Can I argue that the freeholder didnt consult me properly under the section 20 rule?

Regards

[leaseholdanswers]

Yes but he can also ask for relief at the T. You first have to establish if he had the right let alone need to do what he did.

[shuey]

Freeholder problems: Court Summons

Dear LLZ members

I was wondering if someone could assist with some advice. My freeholder has issued summons against me for 'service charges' of £1265.00. I am a full time student and dispute the charges and cannot afford to pay it even if I was made liable, without selling the leasehold of the flat. I do not accept I am liable and always pay what is fair and historically have paid. My query is in relation to letters received from the pursuing solicitor.

The first one stated I must pay £1265.00 plus a letter cost of £120 and attached a photocopy of independent advice contact places (e.g. Citizens Advice Bureau) I could contact. I contacted this solicitor to tell them I do not agree with the charges and that the cost in dispute is £870 as I had paid £260 (what I had agreed to pay all along). I also then stated that I would like to invite mediation rather than via courts, as the matter is under dispute. The solicitor got annoyed at me via telephone for responding on the last day before the deadline he had set and also his client was unlikely to look towards mediation . The freeholders solicitor then contacted me again (ignoring my written request for mediation) stating I now owed £1760.00 plus their obligatory letter charge of £120 which must be paid within 7 days otherwise they commence court action.I ignored this letter as couldnt understand why the numbers were contstantly changing and since they had ignored my request for mediation.

Today I have received a MCOL claim form which I need to acknowledge within 14 days. the claim form doesnt list particulars of the claim but the amount is now £1315.21 plus court fee and solicitors costs of £150. The form says the freeholders solicitor will provide me with separate detailed particulars within 14 days of service. I cant afford expensive solicitors as Im a student and have no money. Please can anyone offer any advice on what I can do in relation to this. Ive checked my lease and the landlord is able to recover legal expenses in relation to debts as a service charge in arrear.

Thanks for any help.

[ram]

I do not accept I am liable and always pay what is fair and historically have paid. .

First, you cannot only pay what you used to pay last year or 3 years ago.

Service charges go up or down depending on the maintenence and repairs needed in / on a building, and not what you paid last year ( if it was less than this years )

What you should always do, is pay, then dispute it afterwards ( Then you can't be charged solicitors fees for not paying or be taken to court for not paying )
You dispute it AFTER paying by going to the LVT ( now renamed FTT ) and put your case to them.
( free if on benefits )

Unfortunately, you will have to pay, then dispute it with the LVT ( FTT )

Is the flat in a house / building of 4 or more flats and more than 50 years old ?, as £ £1265.00 per year service charge is not unreasonable.

Service charges for your car are not constant, you don't tell the garage you are not going to pay £ 350 more than last year ( for new brakes and 4 new tyres ) because you didn't have to pay that much last year ! !

Service charges are what they are. If you can prove the jobs were not done, or done but the place still leaks etc, etc, etc. then go to the LVT

But you MUST pay all that they demand, then dispute afterwards. You have the backing of the LVT / FTT to help your claim.

[ram]

P.S.
You get a loan, sell something, or sell your flat if you cannot afford the service charges.

There will be more service charges next year ( 12 months after the bill for £1265 ) so how are you going to afford to pay the next service charge demand of at least £ 1000 ?

Welcome to the real world.

[shuey]

Thanks Ram

I agree with you in principle but the managing agent has now confirmed these are not service charges.


They actually relate to an escape of water which the freeholder repaired and then invoiced me for. This is covered by insurance (and Im trying to rectify it) but the freeholder is blocking me from making a third party liability claim. The second aspect of the dispute is also for failing to pay more than 20% (my usual share) for insurance. The freeholder wants me to pay 33% of the insurance of the block when I have always paid 20% from when I purchased the lease. N notice was given of the increase just a demand. The lease doesnt stipulate the split of the insurance but I have always paid 20%.

I do not qualify for legal aid as I own the leasehold and that nullifies me from that. Even if I wanted to pay for these charges I dont have the money to pay it.

[andydd]

First of all..it wouldnt be a 'summons', that is for criminal matters. Your landlord would of starting a civil claim at county court.

I disagree with RAM's advice that you must pay and dispute it later, there are a few reasons that give you a legal right to withold payment.

So lets go through this.

1. We assume you are the leaseholder of the property and you have been the leaseholder during the period of when the service cfharges were incurred.

2. Service Charges are only payable for costs actually incurred by the freeholder, i.e. he pays £600 for insurance and £200 for repairs, you then owe £800 (or £800 divided by number of flats depending on the lease).

3. Service charges must be demamnded in accordance with the lease (i.,e timescales, must they be audited, how are costs divided betyween flats, etc).

4. You can withold payment if the demands did not comply with S47 of Landlord & Tenant Act 1987 (demand must show FH address in England), http://www.legislation.gov.uk/ukpga/1987/31

5. You can withold payment if service charge demands are not accompanied by valid Summary of Rights - Service Charghes as per here > http://www.lease-advice.org/publicat...nt.asp?item=13

6. You have a right to challange the reasonableness of amounts at an FTT either they are not payable at all or they are excessive in amount but as RAM has suggested it is very wise to pay first and dispute later.

You say that you think you should pay 20% for insurance but FH wants 33%, this is quite simple..what does the lease say ?. whatever it says it what you must pay.

As you have found out, by not paying costs can spiral..BUT extra charges for admin/legal fees are only recoverable IF the lease allows (except costs allowed at county court).

It is important you read and unmderstand your lease, what is recoverable ?, what is % you must pay ?, are admin/legal costs recoverable ?.

Owning a leasehold flat shouldnt be barrier to getting legal aid, but Ive been in your situation and its unlikley it would be given for civil cases such as this.

It is important you act, discover what you think you owe, make a challange at FTT if neccassary, seek advice at CAB or LEASE (http://www.lease-advice.org/).

Often in cases like this, the FH may approach your mortgage company who may up up and add the amount to your mortgage, remember inability to pay service charges is not a defence.

Hope this helps

[ram]

The reason I said you will have to pay now, is because if you don't pay, the courts will find you guilty of not paying your invoice.
Then more charges accrue, as you say you cannot afford to pay anything anyway.

I would pay "under duress, and on account" the money owing, as that states you still do not agree with the charges.

If you only have 14 days to reply, then a ruling will follow and a court order issued to MAKE you pay.
Borrow the money, pay it off, THEN go to the FTT ( LVT ) and get a ruling on who is right. Otherwise your costs will spiral out of control.
The debt may even be given to debt collectors, and as most of us have seen on T.V. - if you don't / wont / can't pay, your £ 1265 dept can become £ 3000 with debt collectors fees coming to your door, bailifts fees, more solicitors fees.

If you can't pay, expect the bailifs to come and take your car / T.V. / bed / computer if you cannot pay the bills.

Borrow / beg / steal £ 1265 then apply to the FTT ( LVT ) with your problem

[shuey]

the freeholder has confirmed these are not service charges

They are charges that are raised in respect of repairs paid for by the freeholder which are now being charged back to myself as the flat responsible for the cause of the water damage to the flat below. There is third party liability insurance on this building which should cover such a claim but the freeholder has blocked me from communication with the insurance company directly as he doesnt want a claim to go through presumably (to avoid the insurance premium from being bumped up in future years). I note that these repairs were carried out to the 'demised premises' of the flat below ie. the freeholder had no right to carry out repair works there as it wasnt his ceiling to repair! Moreover I could not has reasonably have forseen this leak(s) as the property was rented to a tenant.

In terms of the insurance I have always been charged 20% share from when I purchased the lease. However now since this dispute between myself and the freeholder, the freeholder has only this year decided to bump it up to a third of the share (3 flats) since previously he says there was a ' special agreement with the leasholder as he helped the freeholder in other ways' whatever that means and ' now there is no longer this arrangement' so the deal stands.

In terms of the lease , its rather vague but I did find it saying something to the words of ' under clause 3 the excess contribution payable hereunder shall be paid in proportion which the rateable value for the demised premises bears in relation to the rateable value for the time being of all the flats in the building'. My understanding of this is that the 20% (mine being a studio flat and thus having a rateable value lower than the other two which are 2 bedroom flats) is what should be paid as I have historically paid this.

I have filed an acknowledgement of service so far. Ram do you think I should still pay under protest and file a claim against the freeholder, thus incurring extra costs for filing a claim? Already the claim amounts are wildly put together with no justification given as to why they are charging what they are charging.

Regards

[ram]

the freeholder has confirmed these are not service charges: Ram do you think I should still pay under protest and file a claim against the freeholder, thus incurring extra costs for filing a claim?

Because I don't have any knowledge of the working of MCOL, I cannot advise.
I do not know their dispute proceedures, or if you will be sucessfull in delaying the claim via your acknowledgement, or even know how you disputed the claims in your acknowledgement.

But, if you were instumental in causing a leak, you have to pay for the repair of the downstairs flat.
Either by your own money, or paying the exess by which the policy has risen due to your flooding / wetting the flat below.

Why should the other leaseholders have to pay more for the insurance because your flat had a problem, and damaged a ceiling below. It's Not their problem.

I also don't know if you can ask this MCOL to be redirected to the FTT. You can do this in the courts, and debt is delayed until a ruling from the FTT ( LVT ) is given.

Others may be able to advise you on the workings of the MCOL.

But it seems you have no money to pay for the repairs to the flat below, you have no money to pay the fine, and you have no money to defend the claim, and in your words "thus incurring extra costs for filing a claim"

I hope someone else can answer the question ( should I pay first ) but if you are so destitute, then you will have to sell the flat to pay your debts, and to be honest, your charges less approx for the water ingress, is low.

[siva]

the freeholder has confirmed these are not service charges

They are charges that are raised in respect of repairs paid for by the freeholder which are now being charged back to myself as the flat responsible for the cause of the water damage to the flat below.

Did you not receive a letter before action specifying exactly what the claim is about?

I've only skimmed through the post but it is sounding like it should be a claim for damages but made by the wrong party against the wrong party.

It will be interesting to see what the particulars of claim are, but be careful, the first time I received a claim form, my interpretation was that particulars would follow, however they never did. I think the standard forms are very confusing in that respect. If the claim is still vague, you can issue a defense which is called an embarrassed defense, meaning you don't know how to defend the action because it is not clear what is being claimed.

I'll read the thread properly if I get time. Hopefully others will post in the meantime with good advice.