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My mum lives in a flat that has a communal garden (she has access from patio doors as do all the grd floor)'

 

A few years ago she cleared a bit of unkempt ground near to her and erected a shed. She told the freeholder she had done this. They then started making all sorts of demands and requests for monies and said that they would not accept any ground rent until it was sorted out.

 

My mum continued to pay the ground rent (was even sent a DD form by he management company) and is up to date.

 

The shed has been subsequently removed.

 

She is trying to remortgage and needs confirmation that the GR is up to date. The management company say they can't do this due to the dispute over the shed and requested photos to prove its not there. This was done nearly 2 weeks ago and all we hear from the management company is that they are chasing the freeholder.

 

My question - regardless of the freeholder saying they will not accept the GR, the fact that it has always been paid on time, not returned and no communication has been received to say otherwise - Do they have any grounds not to confirm that the GR is up to date.

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It sounds as if they were claiming that erecting the shed was a breach of lease and that they had right to forfeit, to use this right, a freeholder must stop demanding and accepting ground rent and other payments.

 

But if appears that the gr was still paid and accepted therefore any right to forfeit was "waived", however I'm not sure this helps, as you still need the fh to acknowledge that he has been paid and is up to date, there is no clear mechanism to force them to do this.

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Thanks Andy,

As the GR is paid by DD it will be easy to prove it has been paid but, as you say, getting the FH to confirm may be more of a problem.

 

Fired off another email to the management company today and will do every day until they get it sorted.

 

Fingers crossed!

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  • 4 weeks later...

Update on this.

The mortgage lender accepted bank statements to prove that the GR was paid so all completed ok.

 

However, mum has received a letter from the FH's solicitor enclosing a cheque returning the GR for the past 4 years saying the payment is rejected due to an ongoing dispute. I emailed them stating that as the shed had been removed there was no ongoing dispute and asked if they wanted me to return the cheque or destroy it. They have emailed back the following;

 

"There are two outstanding issues as follows:-

 

1. The hardstanding has not yet been removed, and the ground made good.

 

2. As at April 2012 when we were last in contact with your mother concerning this matter enforcement costs had been incurred in respect of which my clients will be seeking recovery from your mother."

 

I have replied;

 

Re the outstanding issues.

 

1) As far as I can remember the hardstanding was already there and was overgrown. My mother cleared this at her own expense and covered a section with concrete slabs so it is now presentable.

 

2) Please explain what enforcement costs were incurred as there has been no action due the shed being removed as permission was not granted.

 

In your reply could you please forward copies of all correspondence regarding this issue.

 

My issue is that they have not followed this up for nearly 5 years and continued to accept the GR, there is no longer a dispute as the shed was removed - do they have a right to ask for costs.

 

Thx

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Nothing has been enforced...there is no breach of the lease.....no litigation commenced..no costs.

 

Andy

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Thanks Andy,

That is what I thought. I guess they are just trying to get back some costs for the letters they have sent.

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they cannot make the matter retrospective either. Sending a cheque for 4 years GR and saying we dont want it is not part of any procedure and they know it. they are just being silly and hoping that your mum is somehow cowed into accepting or believing this tripe.

I agree with Andy, they have wasted a bit of money over this and made themselves look stupid to boot so they are now spending some more money and looking even more stupid in an attempt to save face.

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Just had this reply to my latest email;

 

I reply as follows:-

 

1. My clients understanding is that the hard standing was put down by your mother.

 

2. We were in protracted correspondence with your mother which eventually resulted in the removal of the sheds. In round figures, the costs involved were £500.00 plus VAT representing some 2.5 hours of work.

 

I do not have instructions to incur the further time and expense of preparing a full bundle of historic correspondence.

 

 

they can take a run if they think they will get a penny out of my mother. Maybe a SAR might be in order.

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1. My clients understanding is that the hard standing was put down by your mother.

 

And of course they have proof ?

 

In round figures, the costs involved were £500.00 plus VAT representing some 2.5 hours of work.

 

Again prove it.

 

Andy

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to quote, "they do not have the instructions". says it all really

Then, they should get instructions to take your mother to court to recover the supposed fees and show the contract that says she is liable for them.

 

stop emailing these people, it is just a way of bothering you for free. Block their email address as spam.

The management co are on thin ice as well considering the Durkin case for damages due to the misreporting.

 

Just had this reply to my latest email;

 

I reply as follows:-

 

1. My clients understanding is that the hard standing was put down by your mother.

 

2. We were in protracted correspondence with your mother which eventually resulted in the removal of the sheds. In round figures, the costs involved were £500.00 plus VAT representing some 2.5 hours of work.

 

I do not have instructions to incur the further time and expense of preparing a full bundle of historic correspondence.

 

 

they can take a run if they think they will get a penny out of my mother. Maybe a SAR might be in order.

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Hi.

 

I agree that returning GR is now a bit late, returning an individual cheque immediately might be ok but not returning a bunch some time later.

 

As for 1., its upto them to prove your mother put down the hard standing

 

2. It is in theory allowable for them to claim costs, no doubt the lease says something about S146/Forfeit costs where they can claim costs if they are following the forfeit route BUT this is a complex area of law and a LH has the right to ask a Court/FTT if such costs are reasonable, there is also a new law to try and stop abuses of this (see here > http://www.lease-advice.org/news-item/coming-soon-new-powers-to-limit-administration-charges-for-cost-of-proceedings/) but its not in force yet.

 

Id write back and say

 

1. Your mum didnt put down the hard standing, there is NO breach

 

2. Any alleged breach has been waived by the FH

 

3. You will use your right to ask a Court/FTT to determine if the amounts are payable and/or reasonable in amount.

 

 

Check your lease first n look for mention of S146

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This was my reply to their last email;

 

"The hard standing was already there and, as stated previously, was overgrown and unkempt. My mother put slabs on top of the original concrete.

 

My mother cannot be liable for your clients costs as there has been no action taken, in fact if the request of proof of ground rent payments had not been made this would matter would not have come to light. I also believe that any return of ground rent should have been done at the time it was paid, not 4 years later so I will wait your instruction what to do with the cheque - return or destroy.

 

As there is not a breach of the lease I will assume that this matter is now closed."

 

Lets see what they come back with.

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Aha..so 4 years later..yes...that is clearly too late, did they actually cash the cheques ?, surely they must of done ?....get copy of your mums bank account to check..refunding 4 years later is NOT the ame as not accepting so IMO this is a clear waiver, even IF there was a breach or not remedied, a FH should act as if the lease has ended as soon as he is aware of the alleged breach, if a FH goes on recongnising the lease by accepting payments, etc he clearly has waived the breach and cannot 1) Take action and 2) Claim any costs as a result of the action.

 

I think its wrong to say that the FH didnt incur any costs, as he did prob spend a few hours investigating and writing to your mum (this would explain £500) BUT your argument is any alleged breach was remedied and in any event the FH waived or accepted the breach by continuing to accept GR (in fact yopur mum may of even got away with keeping the shed, but best it was removed).

 

Did you look at the lease re: S146/Legal costs ?, have you got a copy ?

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Aha..so 4 years later..yes...that is clearly too late, did they actually cash the cheques ?, surely they must of done ?....get copy of your mums bank account to check..refunding 4 years later is NOT the ame as not accepting so IMO this is a clear waiver, even IF there was a breach or not remedied, a FH should act as if the lease has ended as soon as he is aware of the alleged breach, if a FH goes on recongnising the lease by accepting payments, etc he clearly has waived the breach and cannot 1) Take action and 2) Claim any costs as a result of the action.

 

I think its wrong to say that the FH didnt incur any costs, as he did prob spend a few hours investigating and writing to your mum (this would explain £500) BUT your argument is any alleged breach was remedied and in any event the FH waived or accepted the breach by continuing to accept GR (in fact yopur mum may of even got away with keeping the shed, but best it was removed).

 

Did you look at the lease re: S146/Legal costs ?, have you got a copy ?

 

When the original dispute occurred they was a bit of postal tennis then, as I recall, they said they would no longer accept ground rent. A DD mandate was then sent out by the management company so the GR could be paid by annual DD. This has been the case since. We never heard from anyone again until the statement of GR was requested. Personally think the costs are excessive and seem to be a made up figure as they didn't do that much. Unfortunately it looks like mum got rid the letters when she had a clear out after not hearing anything. See what happens then may be time for a SAR.

 

Mum is just waiting for the return of the lease from the solicitors who handled the remortgage, I will check re s146 when she gets it back.

 

Thanks to everyone for the advice so far.

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Believe me £500 is not excessive, Ive been helping someone and the FH has made a claim in excess of £20,000 for costs, any solicitors is going to charge £200 ph hour plus so situations can sometimes get out of control.

 

The Lease should always be your first port of call, it is the contract between FH and LH, ONLY costs mentioned within it would be payable it overrides everything else..even county court rules.

 

You can always get a copy from the Land Registry website, it costs about £15

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Hi Andy,

I have checked the lease re S146 and it says the following;

"to pay all expenses (inc solicitors costs & surveyors fees) incurred by the lessor incidental to the preparation and service of a notice under Section 146 of the Law of property Act 1925 notwithstanding that forfeiture is avoided otherwise than by relief granted by court"

 

What is also interesting is that I can't see anywhere on the lease where it says that permission is needed to erect a shed. I have read it twice so will have another look.. Its A3 size so I can't scan it. May try to get it reduced.

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Yeah thats standard clause in most leases, some allow all legal costs but the S146 just relates to forfeiture, which could in theory be be if a FH writes to a LH about a breach, the law is a bit of a mess in this area with contradictory decisions, maybe this is why the new law I mentioned I mentioned above has been created.

 

I suspect the communal garden is owned by the FH (your mum just has access to or rights over it) so putting up a shed may not be allowed coz its FH's property ALTHOUGH this maybe different to a breach of the lease, a FH would have to point to exactly which clause is being breached.

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  • 3 months later...

So the saga continues.

After not hearing from them after my last email as in post 12 I may have to contact them again.

 

My mothers remortgage completed ok a couple of months ago. She has just been contacted by her conveyancing solicitor as the management company returned the 'notice of charge' sent by the new lenders solicitor - with no explanation as to why!

 

The solicitor contacted the managing agents who said they had been instructed 'not to communicate and all queries to be processed through their solicitor'.

 

May have to contact them to ask the following;

1) Why it was returned

2) Where in the lease it states that a shed cannot be erected

3) Where in the lease it states that my mother is liable for their costs

 

Anything else you can think of and do you thinks its worth a SAR.

 

Thx

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How much is the GR p.a and does Lease specify when payable each year?

If Freeholder provided a DD Mandate, was the requisite s166 Notice also provided in a timely manner, before any GR Demand can be made?

 

 

AFAIK with a DD Mandate, payment is deemed made when it reaches the appointed account, so repaying 4 years payments cannot suggest it was not paid for 4 years.

 

Don't contact them yet.

 

Is the Freeholder a Ground Rent Co.? Which area of UK?

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