breach of lease & s21 notice LTA1985

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s25 LTA 1985 says it is a summary offence for a person to fail, without reasonable excuse, to perform a duty imposed by him by s21, 22 or 23.

Would a leaseholder being in breach of their lease be a reasonable excuse not to supply them with the summary required by s21? In other words, would it be reasonable to send a solicitors letter to a leaseholder saying you are going to prepare a s146 notice and then when you receive a s21 demand ignore it?

Would there be a time limit to act once you have told a leaseholder that you are going to send a s146 notice? Would sending the summary not waive any know breach by the leaseholder?

[Tulula]

I don't know whether this has ever been tested in court so I'm not sure there's a 'correct' answer, but I certainly would ignore a s21 request if I had already issued a s146 notice for the reason you have identified.

[leaseholdanswers]

The sooner you serve the section 146 you can include in proceedings a claim for the amount certified by section 21. The certificate ( and for the sake of costs, copies of all the invoices) is included in the bundle that the lessee receives.

Is S146 the only or a practical response to the breach?

[andydd]

What is the breach ?. If its for non payment of service charges then an LVT may of expected you to send the S21 ? (Just to clarify amounts owing, etc).

And are the 21,22,23 and 25 you refer to all in effect ?

Andy

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No, I'm the leaseholder.

I am wondering whether the landlord can just sit on their claim that they're going to issue a s146 notice in order that they can get away with not communicating with me and also don't have to respond to a s21 request.

I'd have thought that you had to follow up on your threat of a s21 notice within a reasonable time.

After a recent LVT decision the landlord owes me £1500 and I want to try and get them to pay me this rather than be in credit. It's about 3 years worth of service charges.

[andydd]

Aha..

Some LVT's have concluded that if the FH mentions the theat of a S146 he actualy has to have real intention to go through with it, (it otherwise could just be used as an exuse to recover legal costs due to most lease clauses allowing 'costs for purpose of or incidental to a s146'.

Im in similar situation, following LVT, I think they should refund me approx £500 (the LVT were, unhelpfully, a bit vague), the FH 'credited' my account with £250 but for the rem,ainder I had to fight at court where I won and actually got that half physically refunded.

I have mentioned the in credit amount in a recent claim for SC against me by freeholder, I expect them to lose but still not clear about in credit amount, its not actually a counterclaim as such as its already been litigated.

I expect I could make claim and show nothing is owing, SC account is in credit, there is no in credit/sinking fund so the money should be refunded directly to me, theyve now had it about 2 years.

Andy

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Aha..

Some LVT's have concluded that if the FH mentions the theat of a S146 he actualy has to have real intention to go through with it, (it otherwise could just be used as an exuse to recover legal costs due to most lease clauses allowing 'costs for purpose of or incidental to a s146'.

Thanks Andy.

I'm not sure the LVT would be any help in this case. If there's no guideline or case law then I guess it all boils down to the magistrates court's opinion on what is reasonable.

[leaseholdanswers]

You have to apply to the county court to enforce the LVT judgement. Your lease might also be part of the claim if it requires that any service charge paid in excess of actual costs ( in the case as determined by the LVT) are repaid or retained as a surplus/held in sinking fund.

It is highly likely that you would get the £1500 back, but be prepared for some argument along the above lines.

Just issue the section 21 request. If they don't issue one in the time limits then ask the local council to enforce it or
apply to the magistrate yourself.

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You have to apply to the county court to enforce the LVT judgement. Your lease might also be part of the claim if it requires that any service charge paid in excess of actual costs ( in the case as determined by the LVT) are repaid or retained as a surplus/held in sinking fund.

Thanks Leaseholdanswers,

I've posted a separate question on how I go about getting a refund. It's complicated.