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Apr, 2014

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  1. #181

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    Quote Originally Posted by siva View Post
    What does he say he is billing you for?

    Do you want to have a stab at summarising your position? I don't fancy working my way through 67 posts to work out what is going on.
    Hi,

    To sum it up ive got a top floor flat in a block of 10 the roof and front elevation leak causing severe damp and obvious damage,its been empty for around 3 years.the whole building is in a truly dire state and i have tons of evidence to support this.

    Due to this i got behind with the service charge and in jan 2012 was taken to court over a £751 shortfall in service charges.i responded to this with a counterclaim of £5000 due to loss of rent,now im confident in having this claim struck out as the final invoice does not come with the prescribed terms or the landlords details and doesnt even contain the flats address its says its for arrears on my home address which is a freehold house.

    The bill for £9,129.80 is for 3 solicitors that have been working on defending my counterclaim,it simply says statement of costs for hearing and then breaks down there hourly fee (£240) and how many hours they have worked,it also includes fees for agents that have been to the various allocation hearings.

    My lease states: "all fees charges and commisions payable to any solicitor accountant surveyor valuer or architect whom the lessor may from time to time employ in connection with the management and or maintenance of the building including the cost of causing to be prepared statements of annual service cost"

    Clearly i expected a bill but this is crazy,i called the managing agents and they told me that wouldnt even be my final bill! Would it be possible to ask the judge to not allow these charges? it mentions it in the tenants rights/prescribed terms.


    Many thanks Stuart.

  2. #182
    Join Date
    May 2010
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    744

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    Quote Originally Posted by sbw View Post

    Clearly i expected a bill but this is crazy,i called the managing agents and they told me that wouldnt even be my final bill! Would it be possible to ask the judge to not allow these charges? it mentions it in the tenants rights/prescribed terms.
    I seem to remember something about mediation. What happened in that regard?

    Weren't they accusing you of refusing to mediate? Weren't you claiming that they were not interested in mediation? What evidence is there in regard to these claims?

    That covenant in the lease sounds like a service charge which would be a cost shared between all leaseholders. Is that right?

    When you have received demands for service charges. Have they included the summary of tenants' rights and obligations?

    How strong is your counter-claim case in regards to evidence? Is it on the small claims track? What did they claim in their written claim? What did you give as your written defence? What have you claimed in your written counter-claim? What was their written response? Have there been any allegations of unreasonable behaviour? Have costs been referred to in any of the written submissions/claims?

    Are you going to represent yourself? It's rather late in the day and you are pretty much stuck with the arguments/evidence that has already been submitted.
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  3. #183
    Join Date
    Jun 2010
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    Foundation trench for New Shed@ Ham on Rye
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    Siva is right that's a service charge clause - muppets.

    Point it out to the Judge that they can't even read and quote the right bit of lease, so how can they property instruct solicitors.

    And if course quote the right clause of the lease and point to the fact that they cant enforce recovery without the statutory information. Point them to the Section 47/48 cases and the Summary of rights cases.

    And then ask for the section 20c LTA 1985 order if they do intend to add costs to the service charge, or that the LVT are directed by the court to determinate it and return it to the court to rule.

    When the beak struggles you say all I wanted to was to pay and fair and reasonable service charge if they carried out the repairs that their client is reasonable for, or approached it with a modicum of professionalism and common sense, not litigation. You have subsequently learnt that while it is not the law but understood that an agent needs funds to do so, they could had should have discussed that they could repair, but need £x and plan to do y to solve it all. Mediation would have achieved that.
    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. More ramblings atleaseholdpropertymanager.blogspot.com

  4. #184
    Join Date
    Nov 2008
    Posts
    2,124

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    Most of my thoughst have already appeared above.

    But here goes, firstly what track is it on at Court, if its on small track then huge costs like this would be a no-no, however it is often standard practise to ask for them, you should do the same, all the many hours youve put in at £18ph, its only upper limit is the '3/4 of what a solicitor would charge rule' or the Judge'd discretion. I asked for £900 in my case which I thought reasonable but got about a third of that (this was a Summary Judgment so it was pre-allocation so small claims rules didnt apply).

    £9000 doesnt sound too silly, my FH claimed to have costs of over £5000 in the very early stages of my damages case, of course, he didnt get a penny !

    But as poionted out the lease clause does not allow the recovery of legal costs, there are umpteen LVT/UT/High Court cases about this.

    But I know how worrying it can be when these 'bills' land on your doormat..but IMO he hasn't a hope in hell of getting any costs yet alone huge ones like this.

    Andy
    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.

  5. #185
    Join Date
    May 2010
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    744

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    What about the Court awarding costs for unreasonable behaviour? I can remember having a few concerns about this when I was last contributing to the thread, but can't now remember what they were.

    We've heard a couple of cases on here in the last few months where the Court awarded costs on small claims cases. I think it's best if sbw is prepared for such claims from the LL's solicitors.
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  6. #186
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    Jun 2010
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    I just want it to be over
    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. More ramblings atleaseholdpropertymanager.blogspot.com

  7. #187
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    May 2010
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    Quote Originally Posted by leaseholdanswers View Post
    I just want it to be over
    I know what you mean. I've just been through the thread again reading only sbw's posts.

    sbw: Because the thread is so long I could easily have missed something. Please do still answer the questions I posted earlier though.

    It would appear that your LL and their solicitors don’t really know what they are doing but be careful and prepare for the worst case which has a good chance of actually happening from what I’ve seen of the County Court. You could easily end up with a Judge who doesn’t know the first thing about leasehold matters and hasn’t read the written submissions. Then find yourself against a fancy barrister who could easily impress the Judge enough by cherry picking from the evidence and throwing in all sorts of references to statutes and case law. So you need to be prepared to explain your case and the law to the Judge! Print off some copies of the law you are relying on and make sure you refer to it and give the Judge and other party a copy. Hearings are recorded so you need to clearly refer to your evidence and the law in case the Judge decides he just wants a nice and easy case and races through things. Don’t be railroaded, you need to make sure you state your case verbally.

    I have no idea how well you have argued your defence of their claim or how well you have put your own counter-claim so can’t comment on how likely you are to succeed but I do note that you’ve mentioned that you were advised by an earlier Judge to improve your counter-claim. If the Judge is doing his job he shouldn’t just simply allow new evidence/arguments. If the other party try and put forward new arguments or evidence that was not in their written case then object and tell the Judge you need an adjournment to consider the new evidence. Say you want to claim costs for unreasonable behaviour.

    Costs are a completely separate matter and the other party look as though they want to recover their legal costs which are substantial. There are 3 different methods they can try from what I can see. The Judge can make a decision there and then for costs (a Summary Assessment) or can order a separate hearing (Detailed Assessment). Your case is on the small claims track so normally you wouldn’t expect an award of legal costs but the Judge can award costs if he deems a parties behaviour has been unreasonable. There are no clear guidelines on what is considered unreasonable behaviour but simply not paying a demand is in itself not supposed to be unreasonable behaviour. In order that you can prepare to defend their claim for costs and get together any proof, here are some thoughts on what the other party might argue as being unreasonable behaviour (whether it’s true or not – don’t expect them to play fair!):

    1) Non-payment was unreasonable because it was a service charge and it affects all the other poor leaseholders.
    2) Your defence is poor
    3) Your counter-claim is poor vexatious, ‘out of the blue’, devious (You are asking for ‘loss of rent’ damages. Did you buy the flat in the current condition? Have you ever let the flat?).
    4) You refused mediation
    5) You refused to allow them access to assess repairs.
    6) You have changed your argument from the written submission (e.g. you are relying on a statutory defence such as failure to provide the LL’s name and address and a summary of tenants’ rights with demands when you didn’t mention this in your written statement) . Of course if you have only just become aware of such statutes then it probably wouldn’t be considered unreasonable to argue them at the hearing.

    In addition to defending your own behaviour you should complain about their behaviour and apply for costs yourself.

    The second route to costs is via the service charges. Here are some arguments:

    1) Have the lease handy and point the Judge to the section where service charges are apportioned between leaseholders.
    2) Claim that such legal cost service charges are not automatically due and need to be properly demanded as a service charge (in accordance with any stipulations in the lease together with summary of rights etc.) and you wish to prepare arguments to dispute the reasonableness at the LVT. (section 19 Landlord & Tenant Act 1985)
    3) Try to rely on the fact that no summary of rights was provided with the original service charge demands so the ‘costs’ provision does not apply. Subsection 4 of S21B of the Landlord & Tenant Act 1985 states that “Where a tenant withholds a service charge under this section, any provisions of the lease relating to non-payment or late payment of service charges do not have effect in relation to the period for which he so withholds it”
    4) Despite what the lease says, the legal costs service charge is not by default a relevant cost. Courts can decide if it is just and equitable for the service charges. Ask for a s20C order because of the circumstances of the case. Also, why should other leaseholders have to contribute?

    The third route to costs is via an administration charge. You mentioned somewhere in the posts that there is a covenant for recovering forfeiture related legal costs. Here are some arguments:

    1) This covenant is specific to forfeiture. Courts have taken a strict approach in regard to costs and they do not relate to the type of costs they have incurred. Tell the Judge that you would like to argue this point further but you don’t have the reference cases to hand and that if none of your other arguments are convincing you would like to be allowed to dispute them at the LVT or in a separate hearing (detailed assessment hearing).
    2) Claim that such legal cost service charges are not automatically due and need to be properly demanded as an administration charge (together with a summary of rights etc.) Claim you wish to prepare arguments to dispute the reasonableness at the LVT. (This all comes under schedule 11 of the Commonhold & Leasehold Reform Act 2002)
    3) Try to rely on the fact that no summary of rights was provided with the original service charge demands so the ‘costs’ provision does not apply. Subsection 4 of S21B of the Landlord & Tenant Act 1985 states that “Where a tenant withholds a service charge under this section, any provisions of the lease relating to non-payment or late payment of service charges do not have effect in relation to the period for which he so withholds it”

    Like I say, prepare for the worst and you should go in feeling confident. Even if the Landlord uses a barrister the chances are they won’t have spent much time on it. Being prepared gives you the advantage. Print off all multiple copies of the legislation as the Judge will probably need to be educated.

    Let us know how you get on!
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  8. #188
    Join Date
    Jun 2010
    Location
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    I have skimmed the post from Siva and wont comment other than to say kudos for reviewing it and trying so hard. Have a Gorilla

    I can only add the spirit of my post esp the last part of #183, the Court will be tempted to say " well this is all very well" meaning "what's the point". Don't lose them and I hope that #183 keeps it all in perspective.

    Open with a clear and brief summary 2 mins max, that takes you from beginning to end, so that the Court can note down the route and major landmarks, not every bush and hedge that you will get to in argument. Finish with #183.
    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. More ramblings atleaseholdpropertymanager.blogspot.com

  9. #189
    Join Date
    May 2010
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    744

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    I would clarify (to sbw) that my points were in the main in regard to costs and that when I said "be prepared" I meant be prepared to respond to the comments from the other party. LHA's is right. Keep things simple. Only resort to quoting legislation etc. in response to the claims (in particular costs) from the other side.
    I accept no legal responsibility for comments/advice I make on this forum. Please check with a solicitor before acting on statements made in a public forum.

  10. #190

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    I would just like to say a huge thankyou to everyone that has helped me in particular,siva,lha and andy.

    I feel my case is very strong and there court bundle is actually like handing me a loaded gun its like war and peace and contains 5 schedule of works surveys slowly showing the buildings demise.

    I have answered every solicitors letter and im very happy with my responces,their main claim is that they have not repaired my flat due to sporadic and late payment,but there answer to this is instant litigation which has added over £4,000 to my service charge and thats without baliffs enforcement fees and court costs.(and obviously not the latest £9,000 bil)

    They have also now added that iam in breach of my lease for not properly cleaning and maintaining the interior.

    Their witness statement states that during the freeholders visit my property was the only one empty and that all the other properties were in "reasonable" condition.

    As far as enforcebility goes the bundle i recieved shows every invoice sent to me, non of which came with the prescribed terms,most of which dont have the LLs address and many of which have been sent to the wrong address. i.e the flat not my house.

    The notice for proccedings didnt come with the prescribed terms,doesnt contain the LLs address and states that the arrears are for my own home!

    I mentioned this in a letter to the solicitors also pointing out to them for the third time that my postcode for correspondence is actually bn25 not bn24!

    Many Many thanks again not only for all your help but also for putting up with this EPIC thread!!

    Stuart

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