Advice on leasehold - Subletting charges

[medoc]

Hello, I am the owner of a 2 bedroom flat in Leicester. I stayed in the flat from 2005 to 2012 but had to move down to Kent in June 2012. I have allowed an estate agent to manage my flat since then.

 

The flat was rented out initially for 6 months but now extended for a further 12 months until December 2013. I contacted Simarc limited, who collect the ground rent on behalf of Barratt Homes, to change my correspondence address.

 

They wrote to me saying that I should have applied for a notice of underletting. They asked for an instant payment of 120 pounds and asked me to fill in a form with details of the current tenancy. I paid the money and filled in the form saying that the flat has been rented out for 18 months.

 

The company has now encashed the check I sent them but have now sent an email asking for a copy of the tenancy agreement to ensure that the leasehold agreement is not being violated. This is quite a hassle for me because I do not manage the property and will have to contact the estate agent for a copy of the tenancy agreement and then post it to Simarc limited.

 

I am also concerend that I will have to keep doing this and also keep paying them everytime there is a new tenant. Can you please advise if I have to comply with what they are asking. The flat was let out first for 6 months and then extended for a further 12 months. Does that mean that I have to pay them twice? I wanted to ask the company some questions so tried calling them, the phone does not connect at all.

 

I have also sent three emails to the rental company and only received a standard response to the first one. Don't they have an obligation to reply to me when I have a query about my ground rent? Thank very much in advance

 

Kind regards Abhinav

[ims21]

Hi

 

I've moved your thread to the lettings forum where the guys will be happy to help as soon as they are available.

[raydetinu]

I would think your agent could or should be able to advise and assist with the freeholder.

however I think andydd is the one to help here.

[andydd]

Hi there.

 

Bit misleading mentioning ground rent as that is something seperate, Ill amend the title.

 

What you need to do is find and read your lease, if you dont have it, the original solicitor/conveyancer may or it can be got from land registry site.

 

The lease will say IF consent to sublet is required, it also may mention a fee and if it needs to be re-done each year or each new tenant. (Many leases do mention it though, some even completely forbid it).

 

I doubt whether your tenancy argeement would be incompaitible with the lease but I guess it could be, for example you prob shouldnt allow your tenant to sublet but thats obvious.

 

So most of the questions you ask should be answered in the lease, it is also possiblew to ask an LVT (an informal court) to judicate on matters in dispute and furtehr if any charghes are reasonable, they may for example reduce the £120.

 

As for replying to your emails, well, many Freeholders and managing agenmts take a rather lack approachj to replying to correspondence BUT the RICS Code is a legally binding code that they SHOULD follow and this deals with correspondence, you can view it here > http://www.legislation.gov.uk/uksi/2009/512/pdfs/uksiem_20090512_en_001.pdf?type=em#page=6 you could remind them of their obligations and if they are members of ARMA (cant remember if Simarc are - *they dont appear to be*) then there are further codes they should follow > http://www.arma.org.uk/

 

Andy

[medoc]

Hi,

 

Thank you very much for the advice, I will go through my lease as advised. I will also send them an email now reminding them of their obligations with regards to correspondence.

 

Just in case there is a dispute, is there a charge for applying to an LVT?

 

Regards,

 

Abhinav

[mariner51]

Andydd, AFAIKi in legal parlance, 'should follow' is strong legal advice, yet

'must follow' is a legal instruction. Not the same in Law?

[andydd]

Marinwer. Its probably a 'should', the RICS Code is a code that to quote it "The following parts of this Code are approved by the Secretary of State for

England under section 87 of the Leasehold Reform, Housing and Urban Development Act 1993"

 

..its approved by parliament and managing agents are supposed to follow it but ultimately if they dont, there are no real sanctions, but the leaseholder could bring the failures to the attention of courts/LVT's and say 'look, they arnt managing ther property properally and IF they'd replied maybe the dispute could of been settled', I've got a big list of the many failures of my freeholder/managing agent and I will be spelling them all out to a court/LVT.

 

Andy

[andydd]

Hi,

 

Thank you very much for the advice, I will go through my lease as advised. I will also send them an email now reminding them of their obligations with regards to correspondence.

 

Just in case there is a dispute, is there a charge for applying to an LVT?

 

Regards,

 

Abhinav

 

Reading the lease is first step, it may be in 'legalese' and hard to understand..but try !

 

It may help if you go through RICS Code and individually list all the points you think theyve failed at..it looks more impressive.

 

For example heres my list of my FH/MA failures.

 

f) Breaches of The RICS Code

 

Freeholder claim to abide by the RICS Code yet in reality appear to be in breach of a large number of the codes, as listed below:-

 

2.4

 

j) Arrange periodic Health & Safety Checks.

 

They have failed in this and have left the accessway area to become dangerously overgrown and a trip hazard.

 

k) Visit the property to check its condition.

 

There is no proof that they have carried out any sort of inspection, even when I have alerted them to specific areas of disrepair.

 

l) Deal reasonably and as promptly as possible with enquiries.

 

Rarely do they reply to any of my correspondence, even Notice before Action letters.

 

2.6 Insurance commissions and other sources of income should be declared to the clients and tenants.

 

They have not informed me of any commission or claims handling element, even when specifically asked and when using CPR 18.

 

3.4 You should respond promptly to reasonable requests from tenants for information or observations relevant to the management of property.

 

They have not responded to requests for information or replied to my observations regarding the accessway area.

 

3.15 You should have procedures in place to visit the building at regular intervals.

 

There is no proof that they have carried out any sort of inspection, even when I have alerted them to specific areas of disrepair.

 

3.18 You should levy all charges in accordance with the law and the terms of the lease.

 

They have overcharged ground rent for a number of years and ignored correspondence regarding this, this was only resolved after took (and won) legal action. They have sent Service Charge demands in advance, demanded administration charges and interest, none of which are recoverable under the terms of the lease.

 

3.25 You should take steps to keep yourself informed as to developments in the law.

 

They have sent demands for the payment of Administration and Service Charges that do not comply with the law.

 

3.26

 

a) Where not provided for in the lease, you should consider whether to suggest arbitration.

b) You should consider all complaints whether verbal or in writing.

 

Until very recently and I suggest as a direct result of the fact Judge’s insistence, they have never suggested any sort of mediation or arbitration instead starting with legal action.

 

Despite numerous complaints, there has been no response to my correspondence.

 

6.2 When sending a demand it must be accompanied by a summary of tenants’ rights. The particular wording and requirements are specified in regulations.

 

Demands sent do not comply with the applicable provisions of statute law.

 

6.6 Demands for administration charges must be accompanied by a notice summarizing of tenants’ rights.

 

Demands sent for the payment of Administration Charges have not been accompanied by the Summary of Rights as required by statute law.

 

7.15 You should keep shared garden areas tended to a reasonable standard.

 

The common accessway area has been left to become overgrown, unsightly and dangerous, despite adequate warning being given.

 

8.8 You should draw up or arrange for the preparation of a long-term, planned maintenance program and discuss it with those affected.

 

They appear to have made no such plans or asked me for any input.

 

13.2 The landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises they own, a duty to take care that they are safe from injury or damage.

 

The common accessway area has been left to become overgrown, unsightly and dangerous, this is despite correspondence from the surveyors Sorrell (acting on Freeholder’s behalf) raising liability and safety concerns to both me and Freeholder over 4 years ago in 2008.

 

13.5 You should deal promptly with tenant’s reports of disrepair.

 

Any such correspondence from me has been ignored or met with a blanket denial.

 

15.2 FSA Regulations

 

They are in breach of FSA Regulations by offering a Claims Handling Service (paid for by way of an 18.75% commission on the insurance premium).

 

20.1 You should have a clear procedure for complaints and grievances.

 

I have never been informed of any such procedure; in fact, any complaints I have made have simply been ignored.

 

21.6 Landlord should make himself aware of relevant legislation requiring notices to be sent for ground rent and services charges before contemplating legal action.

 

They have sent demands for ground rent, service charges and administration charges before checking that they comply with the relevant provisions of the law, as a result, legal action they have started has been unsuccessful.

 

Yep, there is fee for LVT applications, Lease Advice site is here > http://www.lease-advice.org/information/faqs/faq.asp?item=7

 

It is worth reading the lease to see if it allows FH/MA to recover legal costs, if so, this can be problematic as it can allow the FH/MA to recover legal costs even if you win or lose, but a S20C application can be used to overcome this.

 

Andy

[mariner51]

Thanks for the clarification, Andydd. A legally binding rule, approved by Parliament without real sanctions, then.

[andydd]

Thanks for the clarification, Andydd. A legally binding rule, approved by Parliament without real sanctions, then.

 

Yep....pretty pointless, you can read LVT decisions online and sometimes there is a long list of breaches and stroppy freeholders/managaing agents just say 'so what, we dont legally have to follow them !'.....if the agent is a member of ARMA I believe there are fines/sanctions that can be levied, but of course any dodgy freeholder/managing agent isnt going to join.

 

Andy