Need Help...Homeowner of a leasehold property being sued by managing agents

[yaffsimone1]

I am being sued by my managing agents for non payment of service charges, i have paid some SC just not all of it and there is a reason. The property is mortgaged by myself and could really do with some imput.

This is the stage i am at of sending off my allocation questionnaire, i recevied the Claimants AQ this morning with a ****ty letter.

You will find below the POC and my defence....PLEASE tell me what you guys think.

below is the particulars of the claim (from the Claimant) this relates to service charges for a leasehold property that i own (mortgaged).

The Claimant management company claims interim service charges from the Defendant lessee pursuant to the terms of her lease of (address) dated 22nd March 1976 made between E G Acworth (Builders) Limited (1) the claimant (2) and Peter Frank Mortimer and Linda Christine Sale (3) in the sum of £806.50 as set out in the enclosed invoice dated 12th November 2007 as delivered on or about 21st November 2007

And the Claimant claims:

(I) The said sum of £806.50
(ii) Interest on the sum of £86.50 at 8% p. a. pursuant to section 69 of the County Courts Act 1984 from the 31.7.06 - 3.12.07 (490) days = £9.29
(iii) Interest on the sum of £360 at 8% p. a. as aforesaid from the 31.1.07 - 3.12.07 (307 days) = £24.22
(iii) Interest on the sum of £360 at 8% p. a. as aforesaid from the 31.7.07 - 3.12.07 (125 days) = £9.86
(iii) Interest on the sum of £806.50 at 8% p. a. as aforesaid from the 4.12.07 until the date of judgement or payment whichever is sooner the daily rate of interest being 18p

Now the lease states that they must send me a demand for payment (i.e invoice, and it does sadly say that they can charge 6 months in advance, eventhough the below does not clearly state this). I have never recevied an demand the first i saw it was when it came attached to the particulars of the claim (and in this case i dont believe it has been properly served, more on this further down)

The invoice:-

Interim Service Charge Due 31st July 2006 £360.00
Interim Service Charge Due 31st January 2007 £360.00
Interim Service Charge Due 31st July 2007 £360.00

Invoice total £1080.00

Less sum received on account ( £273.50)

Balance to pay £806.50

Now here is my defence i hope it highlights most of my issues. (if doesnt or it is wrong then i am buggered)

DEFENCE


The Defendant denies that she is liable to the Claimant as alleged in the Particulars of Claim.

The Claimant claims the demand for service charge was issued to the Defendant on or around 21st November 2007. This is flatly denied and the Claimant is put to strict proof that such a notice was served on, and received by the Defendant. In light of this it is averred that the Claimant is in breach of sections 47, 48 of the Landlord and Tenant Act 1987 and sections 20b, 21b of the Landlord and Tenant Act 1985.

The Defendant has no liability to pay service charges as the requirements of the abovementioned Acts have not been met.

The Claimant claims for interim service charges. Service charges payable in advance that date beyond the date of this claim. The Claimant is attempting to take legal action against the Defendant for a period that has not occurred yet and has failed to take into account the payments that have been and will be made since the date of this claim

The Claimant claims the on account payment totals £273.50, the Defendant rejects this. The Defendant, up to December 2007 had paid £393.50

The Claimant claims the on account payment of £273.50 was made within the Interim Service Charge period 31st July 2006, the Defendant rejects this. Various payments were made between August 2006 and July 2007.

The Claimant is not entitled to claim the interest as set out in particulars of claim as they are in breach of the abovementioned Act’s and have incorrectly calculated the amount and period in which the on account payments were made.

Accordingly, the Defendant does not know the case it has to meet and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing the claim is vexatious and amounts to unlawful harassment pursuant to section 40 of the Administration of Justice Act 1970.

It is the Defendant’s position that the Claimant’s claim is entirely unmeritorious and invites the court to strike out the claim for the aforementioned reasons.


I believe that the facts stated in this defence are true

[yaffsimone1]

To help i below are the sections of the relevant acts that i am referring to:-

1. Section 47 Notice

The service charge accounts are a written demand falling within section 47 of the Landlord and Tenant Act 1987, but the service charge accounts do not contain the information required by that section. In consequence, no part of the amount demanded for service charges or administration charges is due.

Section 47 of the Act applies to premises which include a dwelling, as provided by section 46 of the Act.

Section 46(1) says :

"46. (1) This Part [Part VI] applies to premises which consist of or include a dwelling and are not held under a tenancy to which Part II of the Landlord and Tenant Act 1954 applies [business tenancies]."
Section 47 falls within Part VI of the 1987 Act.

Section 47(1) says :

"47. (1) Where any written demand is given to a tenant of premises to which this Part applies, the demand must contain the following information, namely -
(a) the name and address of the landlord, and
(b) if that address is not in England and Wales, an address in England and Wales at which notices (including notices in proceedings) may be served on the landlord by the tenant."


2. Section 48 Notice

The service charge accounts are a written demand falling within section 48 of the Landlord and Tenant Act 1987, but the service charge accounts do not contain the information required by that section. In consequence, no part of the amount demanded for rent, for service charges, or for administration charges is due.

Section 48 of the Act applies to premises which include a dwelling, as provided by section 46 of the Act.

Section 46(1) says :

"46. (1) This Part [Part VI] applies to premises which consist of or include a dwelling and are not held under a tenancy to which Part II of the Landlord and Tenant Act 1954 applies [business tenancies] "
and section 48 falls within Part VI of the 1987 Act.

Section 48(1) of the Act says :

"48. (1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant."


Note: the two are very similar



Section 20B of the 1985 Act says :

"20B. (1) If any of the relevant costs taken into account in determining the amount of any service charge were incurred more than 18 months before a demand for payment of the service charge is served on the tenant, then (subject to subsection (2)), the tenant shall not be liable to pay so much of the service charge as reflects the costs so incurred.

(2) Subsection (1) shall not apply if, within the period of 18 months beginning with the date when the relevant costs in question were incurred, the tenant was notified in writing that those costs had been incurred and that he would subsequently be required under the terms of his lease to contribute to them by the payment of a service charge."

Section 21B of the 1985 Act says :


The Secretary of State for Communities and Local Government, in exercise of the powers
conferred by section 21B of the Landlord and Tenant Act 1985(a) and section 178 of the
Commonhold and Leasehold Reform Act 2002(b), makes the following Regulations:
Citation and commencement

1. These Regulations may be cited as the Service Charges (Summary of Rights and Obligations,
and Transitional Provision) (England) Regulations 2007 and shall come into force on the 1st
October 2007.

Application
2.—(1) Subject to regulation 4, these Regulations apply where, on or after 1st October 2007, a
demand for payment of a service charge(c) is served in relation to a dwelling(d).
(2) Subject to paragraph (3) these Regulations apply to dwellings in England which are subject
to a lease(e).
(3) These Regulations do not apply where—
(a) the lease is not a long lease within section 26 of the Landlord and Tenant Act 1985; and
(b) the landlord is a local authority, a National Park Authority or a new town corporation.
Form and content of summary of rights and obligations

3. Where these Regulations apply the summary of rights and obligations which must accompany
a demand for the payment of a service charge must be legible in a typewritten or printed form of at
least 10 point, and must contain—
(a) the title “Service Charges – Summary of tenants’ rights and obligations”; and
(b) the following statement —

[yaffsimone1]

As far as i am concerned none of the above has been done, the only problem i think i will have is with regards to the invoice that was attached to the POC, i am sure they are going try and say it was properly served.

[yaffsimone1]

I had a response from the Claimant's solictors this morning, they are obviously denying everything i said in my defence and they have enclosed a copy of thier allocation questionnaire.

At the bottom they say....'We look forward to the small claims track'.....they are talking like they have it in the bag!

Oh they have admitted that the claim should now be less than what was stated on the POC...does that help me on anyway?

I could really do with some advice

[Aequitas]

At your request I have looked at this thread again. I did not answer before as I do not have the competence to deal with the detail you have gone into. I stopped practising the law five years ago and have not kept up-to-date with recent developments in this area. The problem you have is that the law is quite involved and is found in more than one place; I suspect that only lawyers who deal with this kind of problem regularly are on top of the law. Ideally, the questions should be dealt with by the Leasehold Valuation Tribunal. It may be worth asking the judge to get the matter transferred there if he has the power to do so. I cannot think that this will be dealt with in the small claims track as although the sums invloved are within the limit, the issues are complicated.

Anyway, you seem to be doing quite well on your own! It may be worth contacting the Leasehold Valuation Tribunal to see if they can offer assistance.

Sorry I cannot be of much use.

Good luck!

[yaffsimone1]

Originally Posted by Aequitas

At your request I have looked at this thread again. I did not answer before as I do not have the competence to deal with the detail you have gone into. I stopped practising the law five years ago and have not kept up-to-date with recent developments in this area. The problem you have is that the law is quite involved and is found in more than one place; I suspect that only lawyers who deal with this kind of problem regularly are on top of the law. Ideally, the questions should be dealt with by the Leasehold Valuation Tribunal. It may be worth asking the judge to get the matter transferred there if he has the power to do so. I cannot think that this will be dealt with in the small claims track as although the sums invloved are within the limit, the issues are complicated.

Anyway, you seem to be doing quite well on your own! It may be worth contacting the Leasehold Valuation Tribunal to see if they can offer assistance.

Sorry I cannot be of much use.

Good luck!

Thank you for your answer, i have indeed considered going through the LVT, however, i thought i might have missed this chance when i completed my defence. If i wished it to go to LVT i was under the impression i had to state at defence stage that this case would possibly be out of the judges juristiction?

The issues i have is that the solicitors have attempted to issue paperwork after starting court proceedings, this is paperwork the managing agents were supposed to issue two years ago, they are also very unclear about how much they should be suing me for and what period it relates to.

If i have the opportunity to ask the judge to transfer it i will, i might even then be able to get the managing agents to provide all the costs / invoices relating to the management charges, this is something they seem very reluctant to do. How can the charges be determined as fair when the owners have not had the chance to view the maintenance invoices? My fear is that because i have not mentioned this in my defence, i will not get the chance to bring it to the judges attention.

Thanks Aequitas

[Aequitas]

Just make the points you want to to the judge. He will stop you if he thinks you are making points that you ought not to be making.