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Service Charge dispute - Section 48 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 48 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 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, under section 48(2) 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."

 

The service charge accounts do not contain the information required by that section. Accordingly, by reason of section 48(2) of that Act no part of the amount demanded for rent, for service charges, or for administration charges (added by schedule 11 part 2 of the Commonhold and Leasehold Reform Act 2002), is due.

 

Section 48(2) says :

"(2) Where a landlord of such premises [to which this Part applies] fails to comply with subsection (1), any rent or service charge [or administration charge] shall ... be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection."

 

Section 48 applies to a tenancy created before 1 February 1988, the date the section came into force. Halsbury's Laws Volume 27(1) page 59 at paragraph 49 note 6, says :

"Section 48 applies to tenancies created or in existence before 1 February 1988."

 

 

The facts are as follows :

 

The service charge accounts purport to furnish the information required by section 48 of the 1987 Act. 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". The notice is in identical terms in each earlier set of accounts.

 

Section 48 of the 1987 Act requires the Applicant to furnish an address in England and Wales at which notices, including notices in proceedings, may be served on him.

 

The notice specifies the Applicant's address as being a Post Office box in (example) the United States of America, an address that is not in England and Wales.

 

The notice gives more than one address, giving also a post office box number in England and Wales. It is not made clear to me which of the addresses is intended.

 

The Post Office box number in England and Wales, namely "(PO Box number)", is neither a residence nor a place of business.

 

The post office box number in England and Wales is not the Applicant's address. It is stated in the notice to be that 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).

 

I received a notice dated (date) from the Applicant's agents, _________ Limited. It is in identical terms to that contained in the service charge accounts.

 

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.

 

 

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

 

Section 48 of the Landlord and Tenant Act 1985 requires the Applicant to furnish me with an address in England and Wales at which notices, including notices in proceedings, may be served on him. At no time has the Applicant complied with section 48(1).

 

The service charge accounts dated (date) contain a notice that purports to comply with section 48(1). The earlier service charge accounts contain an identical notice. The notice does not comply with section 48(1), and is therefore invalid, because :

 

(a) The address which is given in the notice for the Applicant himself, namely a Post Office box in (example) the United States of America, is not in England and Wales.

 

(b) Alternatively, section 48 expressly says "an" address, but the notice gives more than one address, giving also a post office box number in England and Wales, therefore it is not made clear which of the addresses is intended.

 

© Alternatively, an "address" can only be a residence or a place of business, 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 48 if it is a place where the Applicant lives or carries on a business.

 

The notice gives a post office box number in England and Wales, namely P O Box (number), which is neither a residence nor a place of business.

 

(d) Alternatively, the Applicant is carrying on a business in England, as the landlord of various residential premises, namely a property management business. 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.

 

(e) Alternatively, the address is not one at which notices in proceedings can be served, because the Rules of Court preserve a right of personal service. CPR rule 6.4(3) says :

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

 

"Notices in proceedings" is 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.

 

Such a notice cannot be served personally at a Post Office box, but can be served personally at a person's residence or place of business. Accordingly, an address only complies with section 48(1) if it is a place where someone lives or carries on a business.

 

(f) 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 - as detailed above - he gave (address), a residence or place of business, to the Court as his address in those proceedings.

 

(g) Alternatively, the Post Office box in England and Wales is stated in the notice to be that of a third party, (name), not the Applicant. As it is not the Applicant's address, the address is not valid under section 48(1) because 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. Not even the managing agent's address would comply with section 48(1), only the landlord's would; but the third party is not even the managing agent.

 

(h) Alternatively, the notice is not signed. The minimum requirement is that it be signed by either the Applicant, the managing agents, or a person authorised by the Applicant under a power of attorney.

 

Without a signature, I cannot know who is giving me this 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.

And no authority has been granted by the Applicant to authorise the above-mentioned third party, (name), an unincorporated body, to act as his agent or under power of attorney.

 

 

The document dated (date), purporting to be a notice under section 48, is in all material respects identical to the notice in the service charge demands. It is defective and invalid for the same reasons.

 

 

The smokescreen of accommodation addresses would appear to be designed to prevent any judgment which may be obtained against the Applicant from being enforced, for instance under my Counterclaim in the County Court proceedings.

 

 

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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