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Service Charge dispute - Section 47 notice


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In a lease of residential premises granted for a fixed term exceeding 21 years, the tenant has to pay an annual service charge to the landlord.

 

There are many reasons why a service charge demand might be invalid or unenforceable in its entirety. For example, if the landlord has failed to comply with Section 47 of the Landlord and Tenant Act 1987.

 

The following is a skeleton argument in a case where the tenant is defending a claim for service charge on that ground.

 

 

 

SECTION 47 NOTICE

 

The service charge accounts are a written demand falling within section 47 of the Landlord and Tenant Act 1987 but do not contain the information required by that section. In consequence, by section 47(2) of the Act, 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]"

and 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."

 

 

The facts are as follows :

 

I am the tenant of premises known as [address]. The premises consist of (example) a residential flat and a car parking space, in clause __ in the lease.

 

On (date) I received from the Applicant's managing agents a written demand dated (date), for service charge and other sums. On page __ of that document there is an unsigned notice marked (example) "sections 47 and 48 of the Landlord and Tenant Act 1987".

 

I received __ other such demands between (examples) 2001 and 2006. Each contained an unsigned notice in the same terms.

 

The notice, in each case, does not contain the address of the Applicant.

 

(a) The notice contains a mere post office box number, not an address, namely "(PO Box number outside England and Wales)". The use of a post office box instead of an address did not convey to me the Applicant's address: instead it concealed it.

 

(b) The notice also contains a second post office box number, in England and Wales, namely "(PO Box number in England or Wales)". This is stated in the notice to be not that of the landlord, but rather of a third party, (name). They are not the managing agents for my flat, who are __________ Limited, a fact demonstrated by their headed notepaper, for example in their letter to me dated (date).

 

When I received the claim form in the County Court proceedings, I noticed that it gave a different address for the Applicant: not a post office box but a street address, namely "(address)". I was surprised that the claim form did not specify his post office box, because the Applicant always uses that. It's his invariable practice to do so, established over many years: all of the service charge accounts from (date) onward specify that post office box.

 

In each case the written demand is for an amount, in addition to the ground rent, to reimburse the Applicant in respect of various service charge items specified in the demand.

 

 

My reasons for disputing the Service Charge accounts in this respect are :

 

A notice purporting to contain the information required by section 47 of the 1987 Act appears in each of the service charge accounts in question. In each case the notice is in identical terms.

 

The notice does not comply with section 47 for the following reasons, and is accordingly invalid in each case.

 

The notice does not comply with section 47(1)(a) of the Act, in that it does not give "the address of the landlord". It gives a Post Office box number in (example) the United States of America, as detailed above. This does not comply with section 47(1)(a) because a mere Post Office box number is not an address: it is not the place where the Applicant lives or carries on a business. Rather the reverse, it conceals his address.

 

Alternatively, the notice does not comply with section 47(1)(b) of the Act, in that it does not give "an address in England and Wales". It gives a mere Post Office box number in England and Wales, as detailed above. A Post Office box number is not an address: it is not the place where the Applicant lives or carries on a business.

 

Alternatively, the notice does not comply with section 47(1)(b) of the Act in that it does not give an address at which "notices in proceedings" can be served. A mere Post Office box number is not an address at which a notice in proceedings can be served on the landlord, because the rules of court preserve a right of personal service.

 

In the County Court rules, CPR rule 6.4(3) says :

"A document is served personally on an individual by leaving it with that individual."

 

A notice cannot be served personally at a post office box. It can only be served personally at a person's home or place of business. Accordingly, an address only complies with section 47(1)(b) if it is a place where the Applicant lives or carries on a business.

 

The words "notices in proceedings" are defined in Halsbury's Laws, Volume 27(1) page 59, in paragraph 49 note 5, which says :

"For these purposes, 'notices in proceedings' means notices or other documents served in, or in connection with, any legal proceedings."

The words "any legal proceedings" include proceedings in the County Court. Therefore the address must comply with the County Court rules, including CPR rule 6.

 

Alternatively, the Applicant is carrying on a business in England, as the landlord of various residential premises: a property management business, as detailed above. CPR rule 6.5(3) says :

 

"Where a party resides or carries on business within the jurisdiction, he must give his residence or place of business as his address for service", not a post office box.

 

Further or alternatively, the Applicant has admitted in the Court proceedings that he is not entitled to give a mere Post Office box as his address in proceedings, in that he gave a residential or business address, (address), as his address in the Court proceedings, as detailed above.

 

Alternatively, the notice does not comply with section 47(1)(b), in that the post office box is not that of the Applicant. It is that of a third party: (name). Giving the address of a third party does not comply with section 47(1)(b). The section specifically says "served on the landlord", not served on a third party.

 

Further, (name) are not the managing agents for the premises. The managing agents are ________________ Limited. I submit that not even the managing agents address would comply with section 47(1)(b), only the landlord's; but the third party named in each notice is not even the managing agent.

 

Additionally, no authority has been granted by the Applicant to authorise that third party to act as his agent or to act under a power of attorney.

 

For the foregoing reasons, the written demand does not contain the information required by section 47(1). Where that information is not given, section 47(2) provides that the amount demanded for service charge, or for administration charges (added by schedule 11 part 2 of the Commonhold and Leasehold Reform Act 2002), is not due.

 

Section 47(2) of the 1987 Act says :

"47.(2) Where -

(a) a tenant of any such premises is given such a demand, but

(b) it does not contain any information required to be contained in it by virtue of subsection (1) then ... any part of the amount demanded which consists of a service charge or administration charge ("the relevant amount") shall be treated for all purposes as not being due from the tenant to the landlord at any time before that information is furnished by the landlord by notice given to the tenant."

 

Accordingly, no service charges or administration charges are due, because no residence or place of business has ever been furnished to me by notice from the Applicant. He continues to hide behind a post office box number overseas, as evidenced by page __ of his witness statement dated (date) given in the Court proceedings.

 

Alternatively, the notice is unsigned and therefore invalid. It must be signed by the Applicant, the managing agents, or a person authorised by the Applicant under a power of attorney, because without a signature I cannot know who is giving me the notice, nor whether it is given by someone who is entitled to give it. This is particularly so given that the service charge account is also unsigned in each case.

 

A notice dated (date) was served on me. The notice (which is identical to those contained in the service charge accounts) is not valid for the purpose of section 47 of the 1987 Act, because a notice given under the section is valid only if contained in the service charge demand to which it relates.

 

Section 47(1), set out above, says the demand "must contain" the notice. The notice given on (date) was not given in any service charge demand, but separately from them all. The notice is therefore not effective for the purpose of section 47.

 

 

Effect of non-compliance with Section 47 :

 

Definition of "service charge" -

 

Part VI of the 1987 Act (which includes sections 47 and 48 of that Act) uses the definition of "service charge" given in section 18(1) of the Landlord and Tenant Act 1985.

 

Section 46(2) of the 1987 Act says :

"(2) In this Part [Part VI] "service charge" has the meaning given by section 18(1) of the 1985 Act."

 

Section 18(1) of the Landlord and Tenant Act 1985 defines "service charge" as follows :

"18.(1) ... "service charge" means an amount payable by a tenant of a flat as part of or in addition to the rent -

(a) which is payable, directly or indirectly, for services, repairs, maintenance or insurance or the landlord's costs of management, and

(b) the whole or part of which varies, or may vary, according to the relevant costs."

 

Definition of "administration charge" -

The words "or administration charge" were added to section 47(2) of the 1987 Act by the Commonhold and Leasehold Reform Act 2002, and are defined below.

 

The service charge accounts include the administration charges detailed below.

 

Accordingly, all the sums in the service charge accounts sued on are either service charges as defined in section 18(1) of the 1985 Act or administration charges as defined in section 158 of the 2002 Act, so under section 47(2) of the 1987 Act the Applicant's failure to comply with section 47(1) of that Act renders all sums in the service charge accounts not due.

 

 

Note: Please use this as a skeleton. Amend and expand it according to the circumstances you find yourself in.

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

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