Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

I think its quite close to getting it all struck out

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

 

(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,

 

(2) those which are incoherent and make no sense,

 

And the above included in the first bit.

[BlurredFX]

Sorry, I hadn't posted updated, redacted letters into the dropbox folder.

 

The new ones are entitled "Letter from new LL to Man Agent 1 redacted" and 2 and 3, and "New LL to me 1 redacted" and 2.

 

Hope this is OK. I think they spell it out quite clearly that they are not operating with anyone's authority except the informal Management Company (pre-RTM).

 

Is there some kind of implied consent in there though? The Claimant isn't claiming there is, I don't think, but I am just trying to think like a Judge wanting a simple solution by pinning it all on me!!

 

https://www.dropbox.com/sh/bhn6np65qrgevog/AADUqtRWuf6pbD5-ZJJzCApKa?dl=0

 

Nice on guys,

 

Blurred

[BlurredFX]

That old link wasn't right.

 

This brand new link will work.

 

New Link:

 

https://www.dropbox.com/sh/1fw54dph9mbcmbs/AABvGMD5wDITyflaS23mbU-Ka?dl=0

[steampowered]

Please read https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5 regarding what should go into your defence.

 

A defence is focussed on what allegations you admit or don't admit. The defence doesn't provide your "evidence of fact" and it shouldn't contain lots of general giff-gaff. That stuff goes into witness statements.

 

Assuming that you are resurrecting your application for summary judgment as suggested by the judge, you need to think strategically about what goes into your defence (which you provide by the date stated in the order) and what goes into the witness statement (which you provide 7 clear days ahead of the summary judgment hearing as stated in the order).

 

While the claimant has completely failed to provide a concise summary of what he is claiming (as he was required to do), you should still make an attempt to keep your defence brief and focussed on the actual case in hand. In essence you are simply denying his claim that you owe a service service charge and setting out the particulars of your counter claim.

 

Items such as "examples of his complete ineptitude" are not appropriate for inclusion in a defence and should go into a witness statement (if they are included at all). If you include that sort of fluff in the defence the judge's eyes will glaze over. From reading the defence he needs to be able to immediately understand what the claim is about, why you are denying liability and why you are counterclaiming. I am thinking something like 2 pages is appropriate for the defence. The witness statement can be longer. If the judge wants more detail he can read the witness statement.

[BlurredFX]

Thank you SP,

 

You have a great ability to cut through the formal protocol and put it in more readable terms. Then the rules (thanks for the link) suddenly make more sense when I re-read them. You make it very simple for me.

 

I have not been so well the last week, so I suspect I will be going to the Doctor in the next day or two for a sick note to get an extension for a week or so. I will try and get it done, but we will see. It's just a fact of life for me.

 

Can anybody tell me, what the procedure is or where to find it, for the LL (any LL) to formally handover his rights and responsibilities to a Managing Agent or similar? I am looking for a way to counter-act the Old-Landlord's WS saying what he thought the pre-RTM company was appointed properly etc. Surely he can't decide, twelve years later, to try and formalise that non-relationship with a vague WS. What should he have done? At the time?

 

Obviously, I have it in writing form the new-LL that this wasn't the case anyway, but I'd like another "arrow in my quiver" as it were. I see this as having potential to de-rail my case, so it needs addressing I think.

 

There is nothing linking pre-RTM and post-RTM that I can see, but I imagine he can produce it if he wants - so I am just trying to foresee any manoeuvre that they might come up with.

 

What should the old-LL have done to authorise pre-RTM to manage the lease on his behalf?

 

Thanks guys,

[andydd]

I dont think there is any specific process when a LL hands over his rights n responsibilities IF the LL remains the FH of the property.

 

What he can do is employ the MA to take over the day to day running, sending bills, accepting payments but the LL still remains the FH of the property, and ultimately the contract is still between LH and FH and the FH is the only one who can take legal action, etc. (In this case an RTM company has rights to insure, maintain, collect monies but is still NOT the FH).

 

This is different if the MA is also party to the lease (a tri partie lease).

 

I dont think a FH can handover ALL the powers to a MA as that is effectively disposing of his FH interest.

[BlurredFX]

I dont think there is any specific process when a LL hands over his rights n responsibilities IF the LL remains the FH of the property.

 

What he can do is employ the MA to take over the day to day running, sending bills, accepting payments but the LL still remains the FH of the property, and ultimately the contract is still between LH and FH and the FH is the only one who can take legal action, etc. (In this case an RTM company has rights to insure, maintain, collect monies but is still NOT the FH).

 

This is different if the MA is also party to the lease (a tri partie lease).

 

I dont think a FH can handover ALL the powers to a MA as that is effectively disposing of his FH interest.

 

Thank you Andydd.

 

It isn't a tripartite lease.

 

Where do I find the info on grounds for withholding Service Charges and/or Ground Rent? I presume his non-compliance with the lease is sufficient? At least for Service Charges if not GR? I haven't paid either of them.

[BlurredFX]

Service Charge demands do not comply with s21(b) of The Landlord and Tenant Act 1985 - that's the only reason.

 

A bit of rooting round, I found:

 

http://www.lease-advice.org/lvtissues/print_issues.asp?section=1

 

Leaseholders may feel there is a history of neglect to the building which has increased the cost of repair. In such a case will the leaseholders be required to pay the full cost of any works?

 

Why does it matter?

The landlord will generally seek to recover the entire cost of any works and services carried out to deal with the disrepair, as per the terms of the lease. Leaseholders will want to know whether they are liable for all of these costs.

What you need to know

LVT will consider the reasonableness of the costs incurred and set off savings made in previous years where the works were not undertaken. The LVT will consider if leaseholders have been paying towards works for example into a sinking fund.

The law and leading cases

Section 27A Landlord and Tenant Act 1985: parties can apply to the LVT to determine liability to pay a service charge.

Daejan Properties Limited v Griffin [2014] UKUT 206(LC)

An allegation of historic neglect can only provide a defence to a claim for service charges if the tenant can show that the landlord’s failure to repair a particular defect promptly has increased the cost of repairing that defect, or has led to consequential defects requiring repairs that would otherwise have been avoided, giving rise to a claim for damages that the tenant can set off against the liability for service charges. Such damages and set-off may include both the increased costs of repairs, and any general damages for inconvenience or discomfort if the premises were affected by a breach of covenant.

Continental Property Ventures v Mr and Mrs White [2006] EWLands LRX/60/2005

The LVT considered the question of damages arising from the landlord failing to carry out damp proofing work under a guarantee. The LVT can take historic neglect into account.

Purelake New Homes Limited v Stephen John-Gray LON/00AH/LSC/2008/0121

A landlord's neglect and delay in responding to complaints raised by a leaseholder regarding disrepair had given rise to additional service charges being incurred. In this case the LVT decided the leaseholder was not responsible for additional service charges.

 

Which probably isn't relevant at this stage, but it could be, further down the line. I will keep it here as a note otherwise I will lose it.

[BlurredFX]

Right Guys,

 

Here is my draft defence so far:

In the Matter of

Claimant: Post-RTM Company Limited c/o Managing Agents

-v-

Defendant: BlurredFX

 

Despite the Court Order of the 31st March 2016, the Claimant has failed to produce a fully detailed Particulars of Claim. He has failed to provide a consistent statement of account. In amongst the approximately 200 pages of unreferenced and unindexed documents there appears to be many statements of account for different people, including different ones applying to the Defendant. There are hand-made amendments and crossings out. The Claimaint provides no practical statement of account "detailing sums recovered and any outstanding payment plus other details" as required by the order.

 

Prima face the Claimant, Post-RTM Company, established it's Right To Manage with effect from 1st July 2014. Due to illness at the time and the nature of the bundle the Claimant has submitted, the Defendant been unable to establish this properly. In any event, the Defendant made his first payment to Post-RTM Company on the 1st July 2014 - the day the Claimant claims to have established the Right To Manage. The Claimant confirms this in his witness statement, p3 line 5, the payments that have been have made, which bring the account substantially up to date.

 

Therefore I deny I am indebted to the Claimant as alleged or at all.

 

The Claimant appears to be claiming for monies he alleges are owed for dates prior to 1st July 2014. Immediately prior to 1st July, the Freeholder, with whom the Defendant has a ~985 year lease and is responsible for maintenance is New-LL Limited. New-LL are not part of this action. Therefore the claim should fail.

 

I've got this far.

 

My quandary, if from here, do I address the pre-RTM / Post-RTM issue? Or just leave it as it is? Just keep it that short and sweet? As far as I can see, he's made no reference to the pre-RTM / post-RTM companies, or the change in Freeholder, so am I digging myself a hole going down the following track? Or should I jsut get it in??

 

The next portion of the defence may go along the lines of:

 

The Service Charge demands do not comply with s21(b) of The Landlord and Tenant Act 1985 and therefore the Defendant is using his right to withhold payment. Should any valid demands be issued then any costs incurred more than 18 months prior are unrecoverable due to s20(b) of the LTA.

 

The Service Charge demands did not contain the name and address of the Landlord as required by s47/s48 of the Landlord and Tenant Act 1987

 

Then move onto the fact

old-LL--the-person has never joined previous action, and he states in his WS pre-RTM was formed "with the sole aim that once all units had been sold we would appoint directors so they could sef-manage the repairs and maintenance obligations under the terms of the leases". But the Freehold did not change hands; and the defendant doesn't have any contract with pre-RTM. Despite the Witness Statement of Old-LL-The-Person, Old-LL-the-company is not part of this claim.

 

The new-LL, in his letter regarding BlurredFX's Development of the 11th January 2012 in relation to various matters about the building states "...although neither the previous freeholders and/or New-LL are `clients of Managing Agent Limited"'.

 

In the same letter as above, new-LL also states "...Beaconsfield Court Management Company Limited, who are not named in the Lease and technically therefore maintenance obligations are unenforceable against or by that company,...".

 

In the same letter as (5), the Landlord also writes "Finally whilst we appreciate that you are not authorised to collect ground rent and indeed assume you have not therefore been collecting ground rent can you please confirm for the avoidance of doubt that you have never collected any ground rents from any leaseholder in connection with this building".

 

So what do I do? Any thoughts on the potential implication of submitting or not submitting the second bits.

 

Quandary aside, how is it looking so far?

 

Where do I ask the Judge to consider striking it out on the basis it's gibberish? What do I do about the fact he widely quotes from a WP letter I sent trying to resolve the issue in 2010? It's not that incriminating, I make reference to moral obligations to pay my share, but detail the legal arguments as well - but it was WP, and shouldn't be there.

 

What do we think? Going along the right lines?

[andydd]

Thank you Andydd.

 

It isn't a tripartite lease.

 

Where do I find the info on grounds for withholding Service Charges and/or Ground Rent? I presume his non-compliance with the lease is sufficient? At least for Service Charges if not GR? I haven't paid either of them.

 

Non compliance with lease or law are grounds. (I.e demand must be certified, etc)

 

Law being s47/s48 (name of LL on demands) and Summary of Rights (21B).

[BlurredFX]

Non compliance with lease

 

Excellent news, as I have evidence of that where Managing Agent admits as much.

 

I am much more comfortable with that as well as the points of law, it makes the facts flow together much better.

 

It's coming together again. Nice one.

 

I just wish my time management was better, and daft things didn't keep happening to throw little spanners in the works.

 

I'm working on it, but give me numbers any day.

[steampowered]

A defence is supposed to be a concise statement of what facts are admitted and what facts are denied. See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5. You don't need to give enormous amounts of background and you don't need to give lots of legal analysis. You can mention non-compliance with orders etc. but keep it brief as this is not really the purpose of the defence.

 

I think your defence needs to go back to the drawing board. It is confusing to me having read this thread's 18 pages over the last couple of months, the judge will have no chance. The judge must be able to read your defence and very quickly understand the key points regarding what your case is about and why you are denying liability. Remember that you are trying to give the judge a clear basis for making a decision in your favour, which he may ultimately need to develop into a written judgment.

 

I have to confess I don't really understand the RTM issue. I might understand if I read back through the thread but don't have time to do that at the moment. Please clarify if you'd like input on that.

 

Recognising that you don't have much time, I think you need to keep this concise. But you do need to start your defence at the beginning and finish at the end. Try to focus on the fundamental point of whether or not you are liable for the claimed service charges, and avoid getting dragged too much into the 'noise' around other things which have happened (such as the poor state of the Claimant's documents). I'd suggest using concise numbered paragraphs which tell your story in a clear manner from the start to the end. A very simple structure is as follows:

 

1. It is admitted that the Defendant is the leaseholder of the property at [xxxx] and the Claimant is the freeholder of that property.

2. It is admitted that [briefly set out other relevant background which the Claimant has alleged that you accept. For example is it admitted that you are responsible for paying service charges under the lease?]

3. [set out a very concise history as to what has happened so far with the claim - perhaps a few bullet points.]

4. The nature of the Claimant's claim is not entirely clear from the documents submitted to the court, which do not contain a concise statement of the facts on which the Claimant relies. It appears that the Claimant's claim rests upon a claim for service charges. It is denied that the Defendant is liable for outstanding service charges or that the Defendant is liable to the Claimant at all.

5. [set out individually numbered paragraphs going through, in turn, each specific reason why you feel you are not liable.]

 

COUNTERCLAIM

 

6. [insert a brief paragraph describing what happened with the Claimant asking mortgage co for money he wasn't entitled to.]

7. The Claimant owed the Defendant a duty of care not to issue incorrect claims for service charges to the Defendant's mortgage lender being [bank name]. As a result of the Claimant's conduct as set out in paragraph 6, the Defendant has suffered loss and damage through an increased liability to [bank name] under the terms of his agreement with [bank name.]

8. Accordingly the Defendant claims [£amount] and interest on such sum under section 35A of the Senior Courts Act 1981 at such rate and for such period as the court thinks fit.

 

STATEMENT OF TRUTH

[Remember that you need this - use a template if you are unsure]

[BlurredFX]

OK. It does get quite nuanced, and it isn't helped by the fact I am shooting at multiple targets. It's really hard as the Witness Statement is so rambling and it's a nightmare. There is no real particulars of claim to take aim at.

 

Does the following make sense:

 

In the Matter of

Claimant: Post-RTM Company Limited c/o Managing Agents

-v-

Defendant: BlurredFX

 

Despite the Court Order of the 31st March 2016, the Claimant has failed to produce a fully detailed Particulars of Claim. He has failed to provide a consistent statement of account. In amongst the approximately 200 pages of unreferenced and unindexed documents there appears to be many statements of account for different people, including different ones applying to the Defendant. There are hand-made amendments and crossings out. The Claimaint provides no practical statement of account "detailing sums recovered and any outstanding payment plus other details" as required by the order.

 

Prima face the Claimant, Post-RTM Company, established it's Right To Manage with effect from 1st July 2014. Due to illness at the time and the nature of the bundle the Claimant has submitted, the Defendant been unable to establish this properly. In any event, the Defendant made his first payment to Post-RTM Company on the 1st July 2014 - the day the Claimant claims to have established the Right To Manage. The Claimant confirms this in his witness statement, p3 line 5, the payments that have been have made, which bring the account substantially up to date.

 

Therefore I deny I am indebted to the Claimant as alleged or at all.

 

The Claimant appears to be claiming for monies he alleges are owed for dates prior to 1st July 2014. Immediately prior to 1st July, the Freeholder, with whom the Defendant has a ~985 year lease is New-LL Limited. New-LL are not part of this action. Therefore the claim should fail.

[BlurredFX]

OK. I will re-do it as you suggested SP.

[steampowered]

OK. It does get quite nuanced, and it isn't helped by the fact I am shooting at multiple targets. It's really hard as the Witness Statement is so rambling and it's a nightmare. There is no real particulars of claim to take aim at.

Yes, the Claimant has made it very difficult. It is easier to write a defence where the Claimant has provided a well structured POC and you can simply say which paragraphs you admit and which paragraphs you deny.

 

This does make things more difficult, but it also presents an opportunity. If the judge accepts what the Claimant has submitted as a POC, the judge will have to try to understand what the claim is about in order to work out what approach he should take and what legal principles he should apply in order to reach a decision. You have a golden opportunity to help the judge work this all out and do the thinking for him.

 

I think your defence needs to summarise in a user friendly format what the dispute is about, clearly set out the facts in a neutral manner which anyone can understand, then briefly set out what you understand the Claimant is claiming for, then set out why that claim should be rejected. This is exactly what the judge would do in a written judgment, if one is produced.

 

Does the following make sense:

The first paragraph is fine.

 

The second paragraph lost me completely. I don't have a clue what an RTM company is or why you are talking about it. Before going into this stuff I think you need a couple of paragraphs summarising the factual background to your case, so that the judge can understand what the case is about and put the points you are trying to make in context.

 

Third paragraph is fine but should probably go at the end.

 

Fourth paragraph loses me again. I don't understand the relevance of the 1st July 2014 date. I suspect this would make more sense if you had a few paragraphs at the beginning giving the factual background - including for example a sentence which briefly states what happened on 1 July 2014.

[BlurredFX]

OK, SP. You were right; I was wrong. I think this is much better. Please tell me you agree?

 

I think this format makes it much more understandable, and it might be OK to go that bit further about invalid demands etc. Have a squint of this, and see if it makes sense now.

 

Thank you for your guidance and providing the backbone of it all. I think I'm struggling to see the wood for the trees!!

 

In the Matter of

Claimant: Post-RTM Company Limited c/o Managing Agents

-v-

Defendant: BlurredFX

1. It is admitted that the Defendant is the leaseholder of BlurredFX Flat, and prima face it appears that the Claimant established the Right To Manage on the 1th July 2014. The Service Charge was set at £82 per month.

 

2. The Defendant has made payments of xx on yy, which means the account is up to date. The Claimant confirms this on p3 line 5 of the Witness Statement by Managing Agent.

 

3. Judging by previous conduct, the Claimant appears to be claiming for monies he alleges are owing from before he established the Right To Manage.

 

4. Neither post-RTM or the Managing Agent are the Freeholder referred to in the Title Deed, in the Lease, nor is he mentioned within the Lease and nor is he a party to it. None of the rights or responsibilities of the Landlord have been transferred to the Claimant prior to 1st July 2014

 

5. The Freeholder is new-LL Limited, but they have no part in this claim.

 

6. This history in this matter stretches back to 2009. A timeline showing the course of events has been submitted previously. Briefly (7-13):

 

7. Managing Agent first started a claim claim 2009 on behalf of pre-RTM in 2009. Ultimately, he failed to produce any evidence to substantiate his claim and withdrew it. He informed the Court I had settled the matter, when I had not paid a penny. During the hearing he also "purported" (the Judges word) to have sent certain documents, but neither the Court nor the Defendant received anything. The Judge also advised that at that point, if consulted, he would likely be awarding costs in favour of the Defendant.

 

8. In 2011, upon learning the Defendant was very seriously ill, Managing Agent on Behalf of pre-RTM, started a second claim, including dates from the first claim claim2009. He won a Judgement In Default, then mis-represented himself to the Defendant's Mortgage company the threaten forfeiture, and obtained a payment of £6k.

 

9. In 2012, the Defendant successfully applied to have the Judgement set-aside. When a hearing was scheduled, the Claimant did not attend, despite paying the hearing fee. Claim2011 is currently adjourned, with either party at liberty to restore. The Defendant now has the evidence the Judge in that claim wanted to see in order apply for that claim to be finally struck out.

 

10. In 2014 the leaseholders apparently voted to establish the Right to Manage which was enacted by post-RTM on 1st July 2014.

 

11. Upon once again learning the the Defendant was critically ill , in the Intensive Care unit of hospital, the Managing Agent on behalf of post-RTM started this claim. The defendant successfully applied for a series of stay's, submitting lots of medical evidence to the Court.

 

12. The last stay expired in Jan 2016, at which point, the Defendant applied for a Summary Judgement/Strike Out.

13. A hearing was scheduled on the 31st March for the Defendant's application. Following a long hearing, the Court Ordered "The Claimant to file and serve a fully Particulars (detailed) Particulars of claim to set out the basis to the claim, entitlement of the Claimant to recovre sums from the Defendant, detailing sums recovered and any outstanding payment plus other details which the Claimant may advise to address by 22 april 2016.". [sic]

 

14. Despite the Court Order of the 31st March 2016, the Claimant has failed to produce a fully detailed Particulars of Claim. He has failed to provide a consistent statement of account. In amongst the approximately 200 pages of unreferenced and unindexed documents he has submitted there appears to be many statements of account for different people, including different ones applying to the Defendant. There are hand-made amendments and crossings out. The Claimaint provides no practical statement of account "detailing sums recovered and any outstanding payment plus other details" as required by the order. There are hundreds of documents, the purpose of which is not clear.

 

15. The Claimant has failed to establish what role pre-RTM has in this matter.

 

16. The Landlord, since 2012, is new-LL Ltd. That company is not part of this claim

 

17. The Landlord, prior to 2012, is old-LL Limited. That company is not part of this claim.

 

18. The Claimant has provided a Witness Statement by old-LL-the-person, where he states pre-RTM was formed "with the sole aim that once all units had been sold we would appoint directors so they could sef-manage the repairs and maintenance obligations under the terms of the leases". The Defendant's Lease show only old-LL Limited as a party to the lease, and there is no mention of old-ll-the-person, or pre-RTM Limited, or of "self management" or anything similar.

[BlurredFX]

19. Despite the Managing Agents assertion at the hearing of the 31st March 2016, the lease is not defective.

 

20. The nature of the Claimant's claim is far from clear from the approximately 350 unindexed and unreferenced documents he has filed and served. It appears the Claimant's claim rests upon a claim for service charges. It is denied that the Defendant is liable for outstanding Service Charges or that the Defendant is liable to the Claimant at all.

 

21. Additionally/alternatively, Managing Agent has sent various invoices and documents to the Defendant since 2006. The Service Charge demands did not contain the name and address of the Landlord as required by s47/s48 of the Landlord and Tenant Act 1987. The Service Charge demands do not comply with s21(b) of The Landlord and Tenant Act 1985 and therefore the Defendant is using his right to withhold payment. Should any valid demands be issued then any costs incurred more than 18 months prior are unrecoverable due to s20(b) of the LTA.

 

23. The new-LL, in his letter regarding BlurredFX's Development of the 11th January 2012 in relation to various matters about the building states "...although neither the previous freeholders and/or New-LL are `clients of Managing Agent Limited'", appears to directly conflict with old-ll-the-persons Witness Statement of the 21st April 2016, (12 years after he apparently abandoned his responsibilities).

 

24. In his Witness Statement, old-ll-the-person states the Defendant "never challenged this authority and had made several payments during his ownership of his long leasehold...". The Defendant denies any payments have ever been made, and puts the Claimant to strict proof with this allegation.

[steampowered]

I think that's much better, well done.

 

It is a great starting point and now I think you need to add more factual detail. You are expected to lay out the facts clearly before diving into why the claim should be denied.

 

I think you also need to be clearer about the specific reasons you have for denying the claim - the judge needs to be able to go through them one at a time; so for example if there are four points there should be four clear bullet points setting this out.

 

- paragraph 1 - What is the 'Right to Manage'? You should not assume the judge knows the law on this and he won't know anything about your property arrangements. You need to provide more details. For example, do you mean to say that the Defendant is a special purpose company established by leaseholders of the block pursuant to the Commonhold and Leasehold Reform Act 2002? If so, who is the director acting on behalf of that company? Paint the full picture.

- paragraph 6 - I would attach a copy of the timeline at the back of your defence. Saves the judge having to find and trawl through the court file, which the county court staff may have lost anyway.

- paragraphs 16 and 17 - this should go right at the start. Otherwise it is very confusing who is what

- paragraph 19 - I don't understand the relevance of this. I'm not sure anyone will be fussed about what people argued at a hearing back in March. Just tell the judge why you dispute the claim.

[BlurredFX]

Thank you. That's the morning's job.

 

You're a Superstar, SP!

 

Blur:)

[BlurredFX]

In the Matter of

Claimant: Post-RTM Company Limited c/o Managing Agents

-v-

Defendant: BlurredFX

 

1. It is admitted that the Defendant is the leaseholder of BlurredFX Flat. Prima facie Post-RTM appears to a special purpose company established by leaseholders of the block pursuant to the Commonhold and Leasehold Reform Act 2002. I understand that the Claimant established the Right To Manage on the 1th July 2014. The Service Charge was set at £82 per month.

 

2. The Directors of this company are Director1 and Director2.

 

3. The Defendant has made payments of xx on yy, which means the account is up to date. The Claimant confirms this on p3 line 5 of the Witness Statement by Managing Agent.

 

4. The Claimant has failed to establish what role pre-RTM has in this matter.

 

5. The Landlord, since 2012, is new-LL Ltd. That company is not part of this claim

 

6. The Landlord, prior to 2012, is old-LL Limited. That company is not part of this claim.

 

7. Judging by previous conduct, the Claimant appears to be claiming for monies he alleges are owing from before he established the Right To Manage.

 

8. In his Witness Statement, Managing Agent appears to quote widely from a letter I sent to my neighbours in 2010. This letter was an informal letter, headed "Without Prejudice", and as best I recall, represented my best efforts to get the administration of our Leases done in a proper and efficient manner. I have not checked the veracity of what Managing Agent says, as it should not form part of his claim, but I would dispute it's appropriateness for this matter.

 

9. The Claimant is not the Freeholder referred to in the Title Deed, in the Lease, nor is he mentioned within the Lease and nor is he a party to it. None of the rights or responsibilities of the Landlord have been transferred to the Claimant prior to 1st July 2014

 

9. This history in this matter stretches back to 2009. A timeline showing the course of events has been submitted previously, and is included. Briefly:

 

10. Managing Agent first started a claim claim 2009 on behalf of pre-RTM in 2009. Ultimately, he failed to produce any evidence to substantiate his claim and withdrew it. He informed the Court I had settled the matter, when I had not paid a penny. During the hearing he also "purported" (the Judges word) to have sent certain documents, but neither the Court nor the Defendant received anything. The Judge also advised that at that point, if consulted, he would likely be awarding costs in favour of the Defendant.

 

11. In 2011, upon learning the Defendant was very seriously ill, Managing Agent on Behalf of pre-RTM, started a second claim, including dates from the first claim claim2009. He won a Judgement In Default, then mis-represented himself to the Defendant's Mortgage company the threaten forfeiture, and obtained a payment of £6k.

 

12. In 2012, the Defendant successfully applied to have the Judgement set-aside. When a hearing was scheduled, the Claimant did not attend, despite paying the hearing fee. Claim2011 is currently adjourned, with either party at liberty to restore. The Defendant now has the evidence the Judge in that claim wanted to see in order apply for that claim to be finally struck out.

 

13. In 2014 the leaseholders apparently voted to establish the Right to Manage which was enacted by post-RTM on 1st July 2014.

 

14. Upon once again learning the the Defendant was critically ill , in the Intensive Care unit of hospital, the Managing Agent on behalf of post-RTM started this claim. The defendant successfully applied for a series of stay's, submitting lots of medical evidence to the Court.

 

15. The last stay expired in Jan 2016, at which point, the Defendant applied for a Summary Judgement/Strike Out.

 

16. A hearing was scheduled on the 31st March for the Defendant's application. Following a long hearing, the Court Ordered "The Claimant to file and serve a fully Particulars (detailed) Particulars of claim to set out the basis to the claim, entitlement of the Claimant to recover sums from the Defendant, detailing sums recovered and any outstanding payment plus other details which the Claimant may advise to address by 22 april 2016.". [sic]

 

17. Despite the Court Order of the 31st March 2016, the Claimant has failed to produce a fully detailed Particulars of Claim. He has failed to provide a consistent statement of account. In amongst the approximately 350 pages of unreferenced and unindexed documents he has submitted there appears to be many statements of account for different people, including different ones applying to the Defendant. There are hand-made amendments and crossings out. The Claimaint provides no practical statement of account "detailing sums recovered and any outstanding payment plus other details" as required by the order. There are hundreds of documents, the purpose of which is not clear.

 

18. The Claimant has provided a Witness Statement by old-LL-the-person, where he states pre-RTM was formed "with the sole aim that once all units had been sold we would appoint directors so they could sef-manage the repairs and maintenance obligations under the terms of the leases". The Defendant's Lease show only old-LL Limited as a party to the lease, and there is no mention of old-ll-the-person, or pre-RTM Limited, or of "self management" or anything similar.

 

19. Despite the Managing Agents assertion at the hearing of the 31st March 2016, the lease is not defective.

 

20. The nature of the Claimant's claim is far from clear from the approximately 350 unindexed and unreferenced documents he has filed and served. It appears the Claimant's claim rests upon a claim for service charges. It is denied that the Defendant is liable for outstanding Service Charges or that the Defendant is liable to the Claimant at all.

 

21. Additionally/alternatively, Managing Agent has sent various invoices and documents to the Defendant since 2006. The Service Charge demands did not contain the name and address of the Landlord as required by s47/s48 of the Landlord and Tenant Act 1987. The Service Charge demands do not comply with s21(b) of The Landlord and Tenant Act 1985 and therefore the Defendant is using his right to withhold payment. Should any valid demands be issued then any costs incurred more than 18 months prior are unrecoverable due to s20(b) of the LTA.

 

22. The new-LL, in his letter regarding BlurredFX's Development of the 11th January 2012 in relation to various matters about the building states "...although neither the previous freeholders and/or New-LL are `clients of Managing Agent Limited'", appears to directly conflict with old-ll-the-persons Witness Statement of the 21st April 2016, (12 years after he apparently abandoned his responsibilities).

 

23. In his Witness Statement, old-ll-the-person states the Defendant "never challenged this authority and had made several payments during his ownership of his long leasehold...". The Defendant denies any payments have ever been made, and puts the Claimant to strict proof with this allegation.

 

24. In the Lease, the sixth schedule, item 4, clearly states "In every fourth year of the term hereby granted to decorate the exterior of the buildings in the Estate and the Interior of all parts of the buildings used in common by the tenants of the flats".

 

25. To my knowledge, there has been so such redecoration at all during my time as a leaseholder.

 

25. The building continues to suffer from significant neglect, internally and externally. The lease has not been adhered to in terms of internal and external maintenance. The Managing Agent confirms this is the case in his letter of 3rd August 2011, where he states "You will recall that we have written to you recently converning the external decorating at Blurreds Development. Quotations were received and it was decided that as there were insufficient funds in the account it was not appropriate at the present time to ask owners for extra money...".

 

26. New-LL have expressed their concerns at the management of BlurredFX Development. In his letter to the Defendant of 15th February 2012, new-LL writes "...we do have concerns in that respect as the building is not being managed strictly in accordance with the Lease provisions..."

 

26. The Managing Agent and Claimant have demonstrated their incompetence many times. He makes much of the dilapidated double glazing previously sent letters advising that BlurredFX's Development does not require planning permission for new windows. In his letter of 3rd August 2012 (same letter as 25) the Claimant/Man Agent writes "However, enquiries have been made with the local autority about replacing the wooden windows with U.P.V.C., BlurredFX Development is not in the conservation area and therefore there is no restricton on replacing the windows with WHITE UPVC."

 

27. In 2015, Managing Agent and Claimant were about to place a contract, approximate value £70k, with a third party to install cheap, dangerous and unsuitable uPVC windows. He proposed a top-hung style that opened over communal pathways, made of uPVC, both of which are breaches if the planning regulations and conditions applicable to this development. It was only when BlurredFX contacted his local Councilor that he was able to establish that, due to our proximity to the Conservation Area, we had restrictive covenants in the original Planning Permission for our development that this came to light - the Defendant had to urgently point this out to Managing Agent, Claimant Directors and other leaseholders. I understand the order was subsequently cancelled.

 

28. In light of the above, it is denied that the Defendant indebted to the Claimant as alleged or at all.

 

I am working in the Counter-claim now.

[BlurredFX]

Have I gone over the top again?? Here's the Counterclaim.

 

I was chortling to myself earlier: If President Obama phoned me up and said "Ah BlurredFX, design me a rocket to fly to Mars, and you're managing the budget" I'd probably be better able to deal with that than I can with this!!

 

COUNTERCLAIM

 

29. On 29th September 2011, the pre-RTM Limited, having gained Judgement in Default, wrote to the Defendant's Mortgage company, asking for payment of £6394.09 insisting that "...payment is now made in full by your client within 21 days, failure to do so will result in further action being taken and a Section 146 Notice being served on (the Defendant)."

 

30. on 27th October 2011, pre-RTM Limited sent a letter to the Defendant's Mortgage company stating "Further to your letter of 25th October, please find below the details of the bank account to make payment of the outstanding service charge and ground rent for the above property".

 

31. Pre-RTM is not the Freeholder referred to in the Title Deed, in the Lease, nor is he mentioned within the Lease and nor is he a party to it or have authority to collect amounts due under the lease - including Ground Rent which is the Landlord's preserve. Indeed old-LL ltd had been making regular demands for Ground Rents.

 

32. In his letter to Managing Agent on 11th July 2012, new-LL write "Finally, while we appreciate that you are not authorised to collect ground rent and indeed we assume you have not therefore been collecting ground rent can you please confirm for the avoidance of doubt that you have never collected any ground rent payments from any leaseholder in connection with this building..."

 

33. In light of the above, the a duty of care was owed to the Defendant not to issue incorrect claims for service charges and ground rent to the Defendant's mortgage being [bank name], by misrepresenting his position as being authorised to collect Ground Rent and issue s146 proceedings. As a result of pre-RTM's conduct as set out in in this Counterclaim, the Defendant has suffered loss and damage through an increased liability to [bank name] and under the terms of his agreement with [bank name.] has had to pay extra interest and fees.

 

34. The Defendant has suffered additional harm as a consequence of being unable to remortgage at market norms, or at all, as a direct consequence of pre-RTM/Managing Agents conduct and mis-representation.

 

35. Accordingly the Defendant claims £6394.09, plus additional ongoing interest paid to Mortgage Company, plus fees, plus additional interest on such sum under section 35A of the Senior Courts Act 1981 at such rate and for such period as the court thinks fit.

 

36. THe Defendant also seeks off-set against future payments that may become due that are directly related to the neglect of the building by the Claimant **I am going to look at this a little bit more now - andyDD put me on to it earlier in the thread, so I am going to have a root through that**

[steampowered]

That's much better and not at all over the top for a situation like this.

 

It is however still a bit difficult to follow, although that may be inevitable. I think you would benefit from inserting a few sub-headings (such as "The Parties", "The Lease", "The Previous Proceedings" and "The Alleged Failure to Pay Service Charges").

 

With regards to paragraphs 34 and 35 of your counterclaim, you need to make it clear what you are actually claiming for. Any claim which you are making must be properly particularised. If you want to try and claim additional damages on the basis of being unable to remortgage at market rates, then you need to properly particularise that. This would require a proper explanation of how being unable to remortgage has affected you, what steps you have taken in order to try and remortgage and a reasonable estimate of what financial loss you have suffered as a result. If that is not a road you want to go down then you should avoid including statements which hint at (but do not particularise) further claims, and just stick to claiming reimbursement of the £6k amount plus interest.

[BlurredFX]

Understood SP,

 

I will probably use those headings or similar, and then re-jig the points so they are under the appropriate headings. It makes perfect sense now you've said it.

 

I hear you regarding the Counterclaim. That's a tricky business. I've left it vague for a few reasons. Pre-RTM has been dissolved, old-LL Ltd is dissolved as well I think - I'm struggling to find it right now. The funds from pre-RTM's account were transferred to post-RTM's account. I have this in writing. Post-RTM and pre-RTM could be linked with a simple "transfer of assets and liabilities" - and I wouldn't mind rope-a-doping them into doing that, because...

 

I am of the persuasion I will have to reclaim the money off my Mortgage Co. The Judge in the "retrial" thought the same (off the cuff). If I am claiming they aren't linked and have no right to collect, and the reality is I have paid them nowt - but the Morgage co has, and debited me.

 

If they start linking pre-RTM and post-RTM, then I will in future have the evidence showing where my £6k went, and the Mortgage Company can chase it - because they are the only people I had a relationship with, and it is they who debited my Mortgage account and who have charged me extra interest, therefore it is with the Mortgage co that my counterclaim (actually a fresh claim) lies. I reckon the Mortgage co are more likely to refund me if they can reclaim it off post-RTM because he has hung himself with his own rope by linking pre- and post-RTM together. Because they still won't have had authority to threaten s146, unless old-LL Limited formally joins the action, which has always been a risk.

 

If you want to try and claim additional damages on the basis of being unable to remortgage at market rates, then you need to properly particularise that. This would require a proper explanation of how being unable to remortgage has affected you, what steps you have taken in order to try and remortgage and a reasonable estimate of what financial loss you have suffered as a result. If that is not a road you want to go down then you should avoid including statements which hint at (but do not particularise) further claims, and just stick to claiming reimbursement of the £6k amount plus interest.

 

I have a childhood friend with his own IFA company, and he does a lot of mortgages - him, his partners and employees. I would have had to collateralise my old man's house to re-mortgage, due to my health and market conditions etc. My old man clearly wasn't willing to do that with this unresolved matter with potentially unlimited liability. WS' to that effect shouldn't be a problem.

 

Can I particularise that lot? A damn sight easier than I have particularised this lot, I can assure you of that much!

 

My logic is that I want to leave it wide open.

 

Having read my logic, what do you think? Am I just being a bit of an idiot about it and trying to get clever? On reflection, I think I might be getting carried away.

 

It's the uncertainty that's getting to me. The other side have a few options, it's so unclear who or what may or may not join the claim. I think old-ll-the-person will run a mile if he knows there's agro coming his way - he got rid of his interest (and liabilities I should imagine) back in 2012. I'm not sure old-LL Limited still exists. I can't see him coming back with nothing to gain for himself. I wouldn't be surprised if the other side had faked the WS as it is - he always communicated through his solicitor previously, and I'm lost as to why he would get involved again. I was truly shocked at old-ll-the person's WS. But then, some people are strange...

[BlurredFX]

The reality is, for all the agro of asking favours and taking people's time, childhood friends and family or not, the difference is likely to be minimal if I am honest. My mortgage deal is pretty good, even tho I am well out of the two-year fix. It's from 2006, and lending conditions were much more competitive at that point!

 

I am trying to be a smart alec, and it's an idiots trick.

 

KISS. Keep It Simple, Stupid.

 

Thanks,

 

Blurred

[steampowered]

I hear you regarding the Counterclaim. That's a tricky business. I've left it vague for a few reasons. Pre-RTM has been dissolved, old-LL Ltd is dissolved as well I think - I'm struggling to find it right now. The funds from pre-RTM's account were transferred to post-RTM's account. I have this in writing. Post-RTM and pre-RTM could be linked with a simple "transfer of assets and liabilities" - and I wouldn't mind rope-a-doping them into doing that, because...

I have to admit that I do not understand who the different parties are and how they fit together. Hopefully this will be made clear to the judge in the "Parties" section of your defence.

 

If you are saying that a claim for the money wrongly requested from your mortgage company should in fact be paid by an entirely different company, then a claim for that money should be the subject of a separate claim against that different company (rather than being made as a counterclaim here). Given the timing, if you think you might have a counterclaim against the Claimant in this case, then you might as well put it forward in your Defence as you might be allowed have the opportunity to raise that counterclaim at a later date.

 

I have a childhood friend with his own IFA company, and he does a lot of mortgages - him, his partners and employees. I would have had to collateralise my old man's house to re-mortgage, due to my health and market conditions etc. My old man clearly wasn't willing to do that with this unresolved matter with potentially unlimited liability. WS' to that effect shouldn't be a problem.

Unless the difference between the rate you are paying now and the rate you could be paying resulted in a very substantial loss of money until the present, I'm not sure it is worth going down that rabbit hole. This sounds a bit confusing to me and may fall foul of the legal rules around being unable to claim damages that are too 'remote'.

 

There isn't really a middle ground here - either you are making a claim (in which case it needs to be particularised) or you aren't making a claim (in which case you might not be able to bring forward that claim against this claimant in future, since you are required to raise all claims in the same set of proceedings and will not be able to raise another claim about the same facts as a later date).