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animal
25-05-2007, 09:25 AM
Is there any legal requirement to give notice of a penalty for non payment of a service charge on a long leasehold flat (999 years)? the Commonhold and Leasehold Reform Act 2002 seems to imply there is. There is provision in the lease for the freeholder to decide the level of a penalty and the management had set the interest charge to 10% prior to the breach.

Situation is that interest was added to the service charge without any warning or any time period for remedy. Is this unlawful?

I understand that Newham Council –v- Khatun established the precedent that Tenancy Agreements are subject to the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. Does this mean that the above penalty is unlawful by virtue of the true cost to the freeholder is pennies in interest?

Regards

jeffrey
25-05-2007, 09:36 AM
Is there any legal requirement to give notice of a penalty for non payment of a service charge on a long leasehold flat (999 years)? the Commonhold and Leasehold Reform Act 2002 seems to imply there is. There is provision in the lease for the freeholder to decide the level of a penalty and the management had set the interest charge to 10% prior to the breach.

Situation is that interest was added to the service charge without any warning or any time period for remedy. Is this unlawful?

I understand that Newham Council –v- Khatun established the precedent that Tenancy Agreements are subject to the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. Does this mean that the above penalty is unlawful by virtue of the true cost to the freeholder is pennies in interest?

Regards
1. Leases are probably not Tenancy Agreements (considered to be "consumer contracts" within these Regulations).
2. Section 166 of 2002 Act does not apply to service charge demands, only to ground rent.
3. BUT see s.158 of Act and Schedule 11. If the penalty is not specified in the lease- see para. 1(3) of Sch. 11- it is a variable administration charge and so restricted by paras. 2-5.

animal
25-05-2007, 10:14 AM
3. BUT see s.158 of Act and Schedule 11. If the penalty is not specified in the lease- see para. 1(3) of Sch. 11- it is a variable administration charge and so restricted by paras. 2-5.

This is specifically what I was looking at.



Section 4 (1) A demand for the payment of an administration charge must be accompanied by a summary of the rights and obligations of tenants of dwellings in relation to administration charges.


I cannot find what format the demand should be...

jeffrey
25-05-2007, 10:43 AM
This is specifically what I was looking at.



I cannot find what format the demand should be...

There is no fixed "demand" format.
BUT Regulations under para. 4(2) can prescribe form of summary of rights and obligations. No such Regs. yet in force, although para. 4(1) already requires a summary, BUT new SI is pending. See SI 2007/no. 1258, in force on 1 October 2007 (England only, not Wales).
Send me a pm with your direct e-mail address and I'll forward a copy of the SI.

animal
25-05-2007, 12:47 PM
Thanks, that reference was helpful - I found the SI in the online database...

I have taken another look to find where this penalty came from. I cannot find any clause in the lease, related to penalties. The Board minutes where they imposed the penalties states that they are imposing the 10% charge on overdue accounts 'as detailed in the original rules and regulations'. This refers to a handbook that was issued from the old management company that had a lease over the property prior to the purchase of the freehold.

The lease has a clause under regulations which states 'at all times observe and perform all such variations or modifications of the forgoing regulations and all such further or other regulations as the lessors may from time to time in their absolute discretion think fit to make for the management and care of the buildings.'

Any opinion on the legality of this? Seems to fit the definition of an unfair term in that it allows the lessors to change the lease in any way they see fit.

jeffrey
25-05-2007, 12:56 PM
1. Are collective lessees the owners of f/r or is that still owned by builder?
2. Power to make new regs. is in lease, so valid if "for management and care of the buildings". Penalty charge is not within that defined purpose, I think.
3. Anyway, the penalty is still a variable administration charge, since it is neither specified in the lease nor calculated in accordance with a formula specified in the lease- so Schedule 11 applies.

animal
25-05-2007, 13:09 PM
Sorry, I haven't explained the exact situation :-)

1. The original lease was raised in 1984 with the flats built between 1984 and 1986. The flats were originally sold as leasehold. In 2002, all owners agreed to the purchase of the freehold and a company was formed for that purpose. All owners are now shareholders of the company that owns the freehold. The majority of shareholders are elderly and unwilling or unable to stand up to the few who dominate the management, so it is difficult, if not impossible, to get support from other shareholders.

2. I did wonder if 'management' could include recovery of service charges?

3. Would you agree then, that they should have supplied 'a summary of the rights and obligations'? Does this make their demand unlawful?

jeffrey
25-05-2007, 13:45 PM
Sorry, I haven't explained the exact situation :-)

1. The original lease was raised in 1984 with the flats built between 1984 and 1986. The flats were originally sold as leasehold. In 2002, all owners agreed to the purchase of the freehold and a company was formed for that purpose. All owners are now shareholders of the company that owns the freehold. The majority of shareholders are elderly and unwilling or unable to stand up to the few who dominate the management, so it is difficult, if not impossible, to get support from other shareholders.

2. I did wonder if 'management' could include recovery of service charges?

3. Would you agree then, that they should have supplied 'a summary of the rights and obligations'? Does this make their demand unlawful?

2. Yes, but penalties are iffy.
3. Yes and yes. No summary= not payable: see paras. 4(3) and 4(4).

animal
25-05-2007, 17:37 PM
Thanks Jeremy,

I still have reservations as the penalty is referred to as interest. I have studied the lease again and can find no reference to any penalty or interest for late payment of service charges. The actual reference to the penalty is in a resident's handbook and states the directors may apply 10% interest on late payment. But there is no reference to a clause in the lease. I am wondering if they have charged this under some other statute.

I have decided to ask the management under what clause they have applied interest.

animal
29-05-2007, 09:42 AM
Reading again this morning I found
In case of default the same shall be recoverable from the lessee as rent in arrear under the service fees section. I have been unable to locate a definition of 'rent in arrear'. Could this possibly be what they are relying on? Anyone point me to where this is defined in the act?

jeffrey
29-05-2007, 10:04 AM
Reading again this morning I found under the service fees section. I have been unable to locate a definition of 'rent in arrear'. Could this possibly be what they are relying on? Anyone point me to where this is defined in the act?

There is some confusion, I think.
2002 Act ground rent demand format explicitly does not apply to service charge.
BUT
Reserving s/c "as rent" means that consequences of not paying rent apply equally to not paying s/c. L can then exercise various rights (eg approaching mortgagee, suing, claiming interest if lease so provides, theoretical right to seek forfeiture).

animal
29-05-2007, 10:18 AM
You are right, there is confusion! :-)

Are you saying it does give them the right to charge interest on the service charge?

jeffrey
29-05-2007, 10:43 AM
You are right, there is confusion! :-)

Are you saying it does give them the right to charge interest on the service charge?

IF L has right to charge interest on unpaid ground rent, then reserving service charge "as rent" allows L to charge interest on unpaid service charge.
You mentioned a "handbook" previously. The onus is on L to show that the additional provision levying such interest was properly promulgated in accordance with lease. If it was, answer to your question is YES; if not properly promulgated, then NO.

animal
30-05-2007, 09:13 AM
Thanks again Jeremy,

I cannot find anything in the lease that mentions penalties or interest, but then I didn't take in 'rent in arrear' as indicating any sort of penalty either.

On the assumption that they are able to charge interest, would this be an 'administration charge' as defined in the 'Commonhold and Leasehold Reform Act 2002' or is it covered by some other act?

jeffrey
30-05-2007, 11:15 AM
Thanks again Jeremy,

I cannot find anything in the lease that mentions penalties or interest, but then I didn't take in 'rent in arrear' as indicating any sort of penalty either.

On the assumption that they are able to charge interest, would this be an 'administration charge' as defined in the 'Commonhold and Leasehold Reform Act 2002' or is it covered by some other act?

1. Jeremy?
2. Interest would seem to be an admin. charge, so 2002 Act would apply.
3. If no interest charge clause anywhere in lease, either as drawn or as modified by legally-valid Regulations promulgated in accordance with lease, no interest is payable unless and until a Court so orders.

animal
30-05-2007, 11:47 AM
Sorry, wrong person... Jeremy has been helpful on the other matter I'm working on... So double apologies and many thanks jeffrey :o

jeffrey
30-05-2007, 11:49 AM
Sorry, wrong person... Jeffery has been helpful on the other matter I'm working on... So double apologies and many thanks jeffrey :o

Thanks (but I'm not a 'Jeffery' either!)
Jeffrey

animal
30-05-2007, 12:02 PM
You're never going to talk to me again at this rate...:D

I have corrected the first Jeffery to Jeremy. I got the second Jeffrey right!

So thanks and thanks again JEFFREY...

animal
06-06-2007, 08:56 AM
I have had a response from the management.

They say:

'The lease does not specifically mention interest charged on late payment of dues but under clause 3(ii) the Lessee is obliged to "pay all rates taxes duties assessments charges impositions and outgoings".

Late payment of dues results in a loss of income to the lessor who is entitled to claim such loss from the lessee. The charging of such interest is a normal and legal procedure.

Interest was charged on the late payment of dues by [old management co pre- purchase of freehold] and is being charged by [new freehold co]. Residents and Shareholders were notified of this regulation in the handbooks of those companies.'

jeffrey
06-06-2007, 09:13 AM
I have had a response from the management.

They say:

'The lease does not specifically mention interest charged on late payment of dues but under clause 3(ii) the Lessee is obliged to "pay all rates taxes duties assessments charges impositions and outgoings".

Late payment of dues results in a loss of income to the lessor who is entitled to claim such loss from the lessee. The charging of such interest is a normal and legal procedure.

Interest was charged on the late payment of dues by [old management co pre- purchase of freehold] and is being charged by [new freehold co]. Residents and Shareholders were notified of this regulation in the handbooks of those companies.'

They are conning you. Clause 3(ii) does not refer to, or include, interest; its coverage is simply all outgoings payable to others in respect of the property.
Loss of L's income is not covered, the "normal and legal procedure" argument is valid only if there is a legal right to interest (which there isn't), and we have yet to hear that the mysterious "handbook" has any legal force.

animal
06-06-2007, 11:50 AM
Thanks again Jeffrey,

What about statutory interest? Is there provision for this in these circumstances? (I realise a judge would have to award this).

jeffrey
06-06-2007, 11:58 AM
Thanks again Jeffrey,

What about statutory interest? Is there provision for this in these circumstances? (I realise a judge would have to award this).

Only:
a. by Court Order, when also ordering payment of money; or
b. if the Late Payment of Commercial Debts (Interest) Act 1998 applies. It creates a statutory right to interest on a "qualifying debt" [which yours would be] on a contract where purchaser and supplier are both acting in course of business [which you aren't, so it won't help].

animal
09-06-2007, 11:54 AM
I have been unable to locate the statutes or regulations which specify how statutory interest is applied.

My understanding is that the Claimant cannot make a profit from any penalty, though I have been unable to find this referenced anywhere.

In our case, I have looked at the accounts and the only possible loss to the company for my failure to pay the service charge, is interest on deposits, which proportioned out is pennies. And it is unlikely that my contribution would have made it to the deposit account anyway. We have never had an O/D on the co account, so no costs there.

Under what circumstances can statutory interest be applied? If I claimed 'unjust enrichment' would it fall to the management to prove their loss?