Ground rent Freehold Managers PLC JB LEITCH possession order

[brucie146]

My brother and I jointly own a leasehold flat in Essex. We bought it in 1997 and have been renting it out to tenants ever since. Over the years my brother has tended to deal with all the finances and expenses involved in its management.

 

When my brother moved back to ireland in 2008, he contacted an organization called Freehold Managers plc to inform them of his new address in Ireland. They subsequently wrote to him in Ireland. They used to send previous correspondence to his previous address in London. After moving to Ireland my brother received by post an invoice dated 1December 2008 for an annual ground rent bill for £150 -as in previous years he sent them a cheque for £150.

 

To my complete shock this Thursday I received a letter from a firm of solicitors at my home here in London outlining that a possession order had been granted on 20 April in Romford county court. The letter goes on to explain that their client is considering instructing them to enforce the possession order and is seeking costs of £3600 ( this figure includes the court costs). This was the first letter I had ever received regarding this matter. They had not written to me previously before any court action.

 

It now appears that Freehold Managers PLC appointed a firm of solicitors JB Leitch at some stage to deal with outstanding ground rent charges on the flat. My brother was not aware of any outstanding fees due and certainly did not receive any annual invoices in Ireland demanding payment for them.

 

We cannot understand how this has occurred as clearly Freehold Managers had my brother's address in Ireland. They simply never sent any invoices for the ground rent. If they had my brother would have paid the amounts due as he had been doing since 1997. We both knew nothing whatsoever about any court proceedings.

 

We are both terribly worried about the whole situation. My brother has spoken to a Mr McNamara at the solicitors JB Leitch who are acting for Freehold Managers PLC . It seems the ground rent has not been paid for the last three years. and amounts to £450 . My brother has forwarded copies of the correspondence he had with Freehold Managers in 2008 and 2009 at his address in Ireland which clearly shows they had his address in Ireland. Mr McNamara said he will seek their comments and revert back.

 

We are fully prepared to pay the ground rent owing of £450 but do not see why we should pay administration charges of £426 and court fees of £2599.

 

We would both be grateful for any advise members might be able to offer.

Many thanks

Edited June 14, 2015 by Andyorch
Paragraphs added

[AndyOrch]

Thread moved to the appropriate forum.

 

Regards

 

Andy

[mariner51]

I think the key may be you & brother jointly own the Lease on UK residential property in UK. ROI is not subject to UK Laws, but some reciprocal arrangements might apply. & you are the easiest person to pursue

Is the demand for ground rent properly formatted?

To date they are only threatening Court action/costs, if you pay the £450 owed, prob no further action will be taken.

Contact VOA for more advice.

NEGOTIATE.

It is always best in joint enterprises to nominate one partner to take care of tax, bills and accounts, pref the UK resident.

[brucie146]

Thanks for replying

The possession order has already been granted by Romford County Court at the end of April .

Hence the court costs of £2600.

I never received any invoice for ground rent and indeed am perplexed how they got my address. As stated the only correspondence they have ever had has been with my brother and they have corresponded with him at his Irish address .

They sent nothng to my brother concerning the flat despite having his address. We are quite prepared to pay the amount owing for ground rent but the court fees and administration costs are unacceptable

[stu007]

Hi

 

Have you actually confirmed this with Romford County Court that said possession order has actually been granted or have a copy of the order?

[mariner51]

Check out Shelter's advice at http://england.shelter.org.uk/get_advice/leaseholders_rights/ground_rent

The grant of Court repo complicates situation, but set aside, appeal or Court costs rescinded, may be poss, if brother submits PAR (FIOA) request for all rel documentation/letters sent by Freehold Manager plc, and date they acquired Right as Freeholder to collecr Ground Rent. There is limited time before bailiffs appear. IMO

[brucie146]

The possession order has been granted. I have a copy of the order. My brother has sent copies of letters between him and Freehold Managers Plc which clearly show a demand for ground rent of £150 in December 2008 and prove that he informed them of his move to Ireland and his request that correspondence be sent to his new address in Ireland and not to the old address in London. These have been forwarded to the solicitor Jb leitch who told him that enforcement of the possession order has been put on hold while they contact their client and revert back to my brother.

They should be able to see that they failed to send the demand for ground rent to the instructed address and were wrong to begin legal proceedings .How is it they were able to find my address after the order had been granted and not before to enable us to defend ourselves.

Should I contact the court and provide them with the relevant copies of the correspondence or is it too late for that. How else should I proceed. Is there any hope Jb leitch will acknowledge that correspondence was not sent to the correct address and absorb the court fees themselves. How do I ensure that the possession order has been overturned.

[ericsbrother]

clearly abuse of process but many of these types of companies do things this way to earn a dubious shilling.

You should apply for a set-aside and then make it clear that no ground rent has formally been requested so no debt exists and that any furhter application to court will be vigourously defended on this front. You do this to Romford CC.

They had a service address in Ireland so no excuse for not sending out documents. However, as far as using a service address in the UK for issuing court proceedings that is OK as long as they make sure that they are properly sent and it does look like they have used a trace company after the event rather than sending you the necessary papers, another no-no.

[andydd]

Im not convinced that a possession order can be obtained for such a small amount of ground rent.

 

Forfeiture orders as they are properally know are rarely successful and the LH's are normally given every opportunity to remedy the breach, when they are for service charges they have to be for a certain amount and the lease has to allow forfeiture/S146....Ill have to brush up on how it relates to ground rent.

 

It does sound like you should get a set aside first.

[andydd]

Lets deal with the law, Ground Rent is only payable..

 

1. IF valid demands complying with s166 http://www.legislation.gov.uk/ukpga/2002/15/section/166 have been sent

 

2. they must be sent to the property UNLESs an alternative address has been given.

 

3. If the above are not complied with then Gr is not payable and nor are any extra admin fees

 

4. Admin fees are only payable IF the lease allows

 

5. Admin fees are only payable IF the demand is sent with Admin Charges - summary of rights is attached . http://www.lease-advice.org/publications/documents/document.asp?item=89

[andydd]

clearly abuse of process but many of these types of companies do things this way to earn a dubious shilling.

You should apply for a set-aside and then make it clear that no ground rent has formally been requested so no debt exists and that any furhter application to court will be vigourously defended on this front. You do this to Romford CC.

They had a service address in Ireland so no excuse for not sending out documents. However, as far as using a service address in the UK for issuing court proceedings that is OK as long as they make sure that they are properly sent and it does look like they have used a trace company after the event rather than sending you the necessary papers, another no-no.

 

All good points

 

Useful info here > http://www.dwf.co.uk/news-events/legal-updates/2013/08/exercising-a-right-to-forfeit/

 

and here from Shelter > http://england.shelter.org.uk/get_advice/leaseholders_rights/ground_rent

[Lea_HTH]

"Forfeiture orders" are for criminal issues, not property. There is no such thing as a 'forfeiture order' under property law, it is merely 'forfeiture' - the court order is a possession order, and is required where the property subject to forfeiture (a contractual issue) is residential, in which case it is illegal to evict the occupiers without an order of the court.

 

Firstly, the OP has to establish whether the possession proceedings were taken on the basis of forfeiture, or on the basis of a claim for ground rent. They are two different methods of achieving the same thing (possession), but are very different routes.

 

The demand for the ground rent has to be valid - it can validly be served at the address for which the ground rent is due, unless the owner has specified a different address. Going to court without evidence that the demand was validly served would probably not have led to a possession order.

 

The detail is crucial in a case like this. Setting aside the order will only be possible by proving the negative in this situation - i.e. by proving the demands were not received or the court paperwork for the hearing was not received.

 

If the court finds the demands were validly served, the only way to prevent forfeiture is to pay the entire debt AND all costs involved.

[legalistic]

Brucie146, I just googled Freehold Managers. There have been complaints about them.

[brucie146]

Thanks for replies.

My brother sent today to the solicitors JB Leitch further evidence of correspondence between him at his Irish address and Freehold Managers Plc dating from 26 October 2011.It is a ground rent demand for £159 and covers the period from 25 Dec 2011 to 24 Dec 2012. It also states there was no balance brought forward. He also forwarded a copy of a bank statement that proves a card payment for the amount was made to Freehold mangers on 8 Nov 2011.

After that date he had no further correspondence to his Irish address by Freehold Managers PLC. There were no further ground rent demands under section 166.

I notice on the court order the claimant is Fit Nominee limited. My brother has never had any correspondence with them only with Freehold Managers PLC. Perhaps the management of the ground rent was transferred to them but evidently not my brother's Irish address.

Oliver McNamara legal assistant with Jb leitch today acknowledged receipt of the further emails and have said they need to obtain instruction from their client and will revert accordingly.

I have taken advice that we need to apply for a set aside and have read up on the process. Any assistance would be appreciated. Should we wait until we hear from the solicitors. Is it likely that Freehold Managers or FIT Nominee will own up to the mistake and deal with the court order and costs from their side. Should I write back to the solicitors and set a time limit for them to advise me of their clients position and how much time should I give them or is it best to proceed with the N244 form.

Thanks a lot

[andydd]

"

 

Firstly, the OP has to establish whether the possession proceedings were taken on the basis of forfeiture, or on the basis of a claim for ground rent. They are two different methods of achieving the same thing (possession), but are very different routes.

 

 

 

 

What are the two different routes ?, forfeiture for failing to pay service charges and thus a breach of covenant (this requires a court hearing to establish an actual breach) and failure to pay ground rent ?, I'm not entirely clear what protections apply to the latter, I assume its still the £350 limit/3 year rule (which it would appear have been reached here anyway).

 

It is important as mentioned that the LH gets the claim set aside firstly because it appears no court paperwork was sent and secondly as no GR demands were sent, but as there are joint FH, it maybe that the paperwork only has to be sent to one, we assume they live in different addresses ? I think the fact there are joint LHs in they case may complicate matters.

[legalistic]

brucie146, was/is there a tenant living in the property? You say it was rented out.

[andydd]

I'd proceed with the set aside application, there wont be a huge cost for this..and then wait and see if you hear from solicitors.

[andydd]

brucie146, was/is there a tenant living in the property? You say it was rented out.

 

Im not sure if this makes a difference, it could be that there is a tenant and has a AST for a certain period but the forfeiture, (god forbid it goes that far) must be done in a shorter period.

 

Heres a case involving my FH (Forcelux) where they nearly get forfeiture of a LH's property but the Judge is still lenient > http://nearlylegal.co.uk/blog/2009/10/applying-to-set-aside-possession-or-when-is-a-trial-not-a-trial/

[brucie146]

There is a tenant in the flat but it is managed by a letting agent and they do not forward any post to us. In fact neither me nor my brother have visited the flat in years.

Although I live in London no notification of court proceedings were sent to my address or demand for ground rent. The first correspondence I had was from the solicitors last Thursday who must have carried out a search for my address. The court case was 30 April and I received my first letter from them on the 11 June.

My solicitor has said we wait till tomorrow for Jb leitch to reply and failing that send them a letter requiring information by Friday

[andydd]

If they did a search then this may help if you can prove it as it shows they weren't sure who they should be contacting.

[brucie146]

Thanks for that.

[Lea_HTH]

What are the two different routes ?, forfeiture for failing to pay service charges and thus a breach of covenant (this requires a court hearing to establish an actual breach) and failure to pay ground rent ?, I'm not entirely clear what protections apply to the latter, I assume its still the £350 limit/3 year rule (which it would appear have been reached here anyway).

 

I'm not here to teach anyone land law (it'd take too long and forfeiture is complicated), suffice to say, the information I gave is correct. If the OP chooses to ignore it, that is his prerogative. Purely for your interest, however, forfeiture is a contractual term and does not need a court order for it to take place - a court order is needed to evict.

 

It is important as mentioned that the LH gets the claim set aside firstly because it appears no court paperwork was sent and secondly as no GR demands were sent, but as there are joint FH, it maybe that the paperwork only has to be sent to one, we assume they live in different addresses ? I think the fact there are joint LHs in they case may complicate matters.

 

What's important is for the OP to establish what has actually happened. Demands for ground rent need only go to the property and the same goes for the court papers, and he has already indicated his tenants/agents don't pass information on. And as of the additional posts provided, we still do not know if the property has been forfeit and the possession proceedings were simply the last stage, or if a claim was just made for outstanding 'rent'.

[andydd]

I'm not here to teach anyone land law (it'd take too long and forfeiture is complicated), suffice to say, the information I gave is correct. If the OP chooses to ignore it, that is his prerogative. Purely for your interest, however, forfeiture is a contractual term and does not need a court order for it to take place - a court order is needed to evict.

 

 

 

What's important is for the OP to establish what has actually happened. Demands for ground rent need only go to the property and the same goes for the court papers, and he has already indicated his tenants/agents don't pass information on. And as of the additional posts provided, we still do not know if the property has been forfeit and the possession proceedings were simply the last stage, or if a claim was just made for outstanding 'rent'.

 

I don't agree with some of the points, whilst it doesn't apply here because this involves Ground Rent, a court or tribunal must be involved to determine if a breach of lease has occurred (for non payment of service charges for example) as per here > http://www.lease-advice.org/information/faqs/faq.asp?item=233 . Forfeiture maybe a contractual term BUT there have been many changes to the law that effectively overwrite lease contractual provisions See 168 > http://www.legislation.gov.uk/ukpga/2002/15/section/168

 

And if the LH has told the FH that he doesn't live at the property than obviously any demands must be sent to this alternative address and not the property, see here s166 (6) - http://www.legislation.gov.uk/ukpga/2002/15/section/166.

 

"If the notice is sent by post, it must be addressed to a tenant at the dwelling unless he has notified the landlord in writing of a different address in England and Wales at which he wishes to be given notices under this section (in which case it must be addressed to him there)." Although I note in this case, it is in Ireland, which may complicate matters ?

 

I'm not sure about court papers, I would of thought a court would expect papers to be sent to the LH address he resides at and not sent to the property, although of course they could be sent here IF the FH doesn't have another address for him.

[Lea_HTH]

I charge for legal advice...but on these forums I merely help out where I feel I can; it is OP's prerogative as to what he chooses to do with what he reads.