Repeated litigation by different Property Management Companies

[BlurredFX]

Hi Guys,

 

Following in from my 17 page thread, that dates back over ten years, I am starting a new thread, at the suggestion of the site team.

My issue relates the a) service charges relating to the Leasehold flat I bought back in 2006

b) a Managing Agent who is of questionable abilities as a manager of our block of flats.

The Managing Agent has claimed £6k in fees to which (I think, as does the new Landlord) he was not entitled. I am wanting to get it back, and/or the fees on my account calculating properly which would leave me with a credit balance. 

I am recently in receipt of a 4th claim relating to this dispute, with two of the previous three going 'no where'. The other one they won in default on 2011, but I successfully had that set-aside.They have not given me the money back though. It all started due to poor management of the block, and it transpired upon scrutiny that the management arrangements appear to be unenforceable prior to 2014. It's very complicated.

This information is required simply posted, and not as a PDF, so here goes:

 

1.       BlurredFX Service Charge Saga

2.       Sept 2006

a.       In 2006 BFX buys a leasehold flat. His solicitor advises him that Ground Rent is payable to Landlord-one and Service Charges are payable, but to be wary of the service charges, as he is unable to confirm how they are being administrated.

b.       BFX is sent a bill for service charges from PQR Managing Agent. BFX enquires as the legitimacy of the service charges, but is unable to get a satisfactory answer. The service charge requests are not complicit with the required legislation – such as the name of the Landlord. They are served in the name of ABC Management Company Ltd c/o PQR Managing Agents.

c.       ABC Management Company has two Directors, both residents of the block in which BFX resides and to which this dispute relates.

d.       Landlord-one is absent, except for Ground Rent requests.

3.       2006-2009

a.       Despite written and verbal requests, BFX refuses to pay any service charges until ABC Management Company are properly authorised by Landlord-one – because without such, he has no recourse or way to complain.

b.       Demands are not complicit with the legislation.

c.       The property was not properly maintained. For example, the lease obligations for an internal redecoration every five years had no been met. The obligations to maintain the exterior of the had not been met, and the timber double glazing was starting to rot quite badly.

4.       2008/2009/2010

a.       TUV Managing Agent Ltd buys out PQR Managing Agent (a sole trader, I believe). They seem to operate interchangeably for a few years, using different headed paper along the way. They seem to be interchangeable. It is the same personnel.

5.       June 2009

a.       TUV Managing Agent LTD, on behalf of ABC Management Company Ltd, file a court claim against BFX. [CLAIM2009]

b.       BFX asks them to fully particularise their claim, including asking for details of who authorised them to manage the building and various other pertinent questions.

6.       10^th August 2009

a.       BFX sends CPR18 – request for information to TUV Managinig Agent c/o ABC Management Company

7.       2009

a.       Hearing is scheduled for Jan 2010 [CLAIM2009]

8.       February 2010

a.       There is a hearing.

b.       Ref: [CLAIM2009]

c.       From the Court: IT IS ORDERED THAT

the claim be stayed to enable the Parties to endeavour to reach a settlement

if no application is made to restore by Tuesday 6^th April 2010, the claim be struck out

9.       24^th March 2010

a.       TUV Managing Agent sends BFX an agreement to sign, agreeing to pay. BFX does not sign the document.

10.   2010 – 30^th or 31^st March 2010

a.       BFX attends a meeting with a Director of ABC Management Company and Director of TUV Managing Agent.

b.       BFX outlines his position, and suggests a verbal agreement to pay from 2006-2010 once the management of the block is properly administrated – my preference being the ‘RTM route’.

c.       The other people at the meeting do not appear to understand.

11.   1^st April 2010

a.       TUV Managing Agent on behalf of ABC Management Company write to the Court, asking that the claim be restored, claiming BFX has remained silent.

b.       Notice of allocation from the Court, dated 15^th April, for a hearing in July.

12.   July 2010

a.       On the day, a lady at the Court informs BFX that TUV Managing Agent has been on the phone, and said that BFX has paid the money and to cancel the hearing.

b.       BFX had not paid any money at all.

c.       Nothing more is heard of [CLAIM2009]

 

 

END of 1st Claim - 2009

 

Quote

 

13.   6^th October 2010

a.       ABC Management Co c/o TUV Managing Agent send a letter, after the Freehold Reversion of BFX’s block comes up for sale. TUV Managing Agent outline three options – do nothing, RTM, or buy the freehold.

b.       BFX opines that it is not good advice, but is ignored.

14.   December 2010

a.       BFX’s health starts to visibly deteriorate.

15.   Late April 2011

a.       BFX is blue-lighted into the regional hospital, as witnessed by Director of ABC Management Company.

16.   Early May 2011

a.       TUV Managing Agent, on behalf of ABC Management Company, commence a new claim against BFX – literally within a week or so of BFX going into Hospital!

b.       This is [CLAIM2011]

17.   August 2011

a.       TUV Managing Agent and ABC Management Company are awarded Judgement in Default.

b.       BFX remains critically ill in Hospital.

18.   September 2011

a.       Letter from BFX’s Mortgage Company-One to BFX

b.       “We have been advised by TUV Managing Agent that your Ground Rent and Service Charges of £6k-ish has not been paid.” Iy goes on to say pay them.

19.   September 2011

a.       In reference to [CLAIM2011] a letter from TUV Managing Agent to BFX’s Mortgage Company-One states:

b.       “As the managing agents of BFX’s Block, I write to advise you that your client, BFX, is in severe arrears and therefore is in breach of his lease.

c.       “A County Court Judgement was served on August 2011 in the sum of £6k-ish. A Copy of the Judgement is enclosed for your reference.

d.       “I therefore request that this 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 146Notice [sic] being served on Mr Piggin”

20.   October 2011

a.       Letter from TUV Managing Agent to BFX’s Mortgage Company-One states:

b.       “Further to your letter of 25^th October 2011, please find below the details of the bank account to make payment of the outstanding service charge and ground rent for the above property” [BFX’s property]

c.       Mortgage Company-one makes a payment to ABC Management Co c/o TUV Managing Agent, for the claim amount.

21.   January 2012

a.       Landlord-one sells his freehold to Landlord-two. BFX receives a letter from Landlord-one’s solicitor. It states:

b.       “…we write to advise that the benefit of the receipt of the ground rent payable under such Lease has now been transferred to Landlord-two to whom all future payments of ground rent including all arrears and the amount due from 2st January 2012 shall be payable to and whose receipt shall be a full and absolute discharge under such Lease”

22.   February 2012

a.       Landlord-one sells his freehold to Landlord-two.

b.       Landlord-two writes to BFX stating that he owes Ground Rent since 2006.

c.       That letter from Landlord-two to BFX also states

d.       “While we have no wish to disrupt and current workable management arrangements we do have concerns in that respect as the building is not being managed strictly in accordance with the Lease provisions and although we would have no great objection to ABC Management Company Ltd continuing with the management of the structural and communal areas of the building we would be happier if the present informal arrangement, which could in theory be discontinued at any time by any party, could be formalised either by a Deed of Variation being entered into in connection with each individual leaseholder or by a complete Deed of Variation being entere into by all parties. We hope you will support a Deed of Variation and would request your written views in that respect.

e.       “We were in direct communication with PQR Managing Agent prior to completion of our purchase and enclose for your information copy letter written to that firm on 11^th January 2012. PQR Managing Agent have confirmed they have never received any ground rent payments and they are raising our ‘insurance concerns’ with X Insurer.”

f.        The letter referred to above also asks PQR Managing Agent to make certain material disclosures to X Insurer.

g.       In his letter to TUV/PQR Managing Agent, dated 11^th of Jan, Landlord-two also states,

h.       “As management is current [sic] carried out by you on behalf of ABC Management Company Limited, who are not named in the Lease and therefore maintenance obligations are unenforceable against or by that company, you may wish to give consideration to:” It then proposes a) a deed of variation, or b) Landlord-two becomes a client of TUV Property Management, and long term management is done that way.

i.         The letter from Landlord-two continues:

j.         “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 or, if you have collected any ground rent payments, can you please let us have details of such payments.”

23.   October 2012

a.       BFX makes an application for the Judgement to be set-aside, an account of his being hospitalised almost constantly since April 2011.

b.       A hearing is scheduled.

24.   January 2013

a.       There is a hearing, the Judgement against BFX is set-aside. TUV Managing Agent and ABC Management Company do not attend. BFX has until February to file his Defence and Counterclaim, which he does.

25.   March 2013

a.       AQ’s submitted, and hearing scheduled.

b.       TUV Managing Agent, on behalf of ABC Management Company is ordered to pay the hearing fee.

26.   18^th April 2013

a.       Court orders unless TUV Managing Agent, on behalf of ABC Management Company pays the fees, the claim shall be struck out.

b.       Letter from the Court: BFX’s counterclaim remains listed for May 2013. There is a hearing, and TUV Managing Agent, on behalf of ABC Management Company fail to attend.

27.   May 2013

a.       After a hearing, where TUV Managing Agent and ABC Management Company fail to attend, the Court orders: “The claim be adjourned generally with the liberty to restore on the application of either party.”

28.   2^nd half of 2013 and 2014

a.       Various letter from TUV Property Management, and meetings of residents. It is decided by Leaseholders in BFX’s block that we should exercise our ‘right-to-manage’.

29.   17^th February 2014

a.       Letter from a solicitor dealing with the RTM progress, it says Landlord-two now has 28 days to file a response.

30.   4^th June 2014

a.       BFX Receives a letter from TUV Property Management it states:

b.       “Please find enclosed a new standing order form for BFX’s block.

c.       “We have opened a new current account for BFX’s block due to the Right to Manage coming into effect in 1^st July 2014

d.       “The new standing order is to commence on 1^st July 2014…”

e.       It continues with pleasantries about cancelling old SO etc.

31.   2^nd July 2014

a.       The newly formed ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX for £3.3k, the description on the invoice being ‘Account Adjustment: Transfer from previous Management Company’

32.   2^nd July 2014

a.       The newly formed ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX for £3.6k, the description on the invoice being ‘Account Adjustment: For period 4^th July 2014 – 30^th September 2014’

33.   28^th July 20014 (1)

a.       ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX for £3.5k, having added £12. It states ‘Account Adjustment: Title Register’.

b.       IT ALSO SHOWS BFX’s FIRST PAYMENT of 1 month’s service charges to ABC RTM Company Ltd as ‘Payment Received’

34.   28^th July 20014 (2)

a.       ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX for £3.8k, having added £360 court fees. It states ‘Account Adjustment: Court Fees’

35.   28^th July 20014 (3)

a.       ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX for £4k, having added £120 in court fees

36.   11^th August 2014

a.       The newly formed ABC RTM Company Limited (c/o TUV Managing Agent) sends an invoice to BFX adding another £85. Description: ‘HM Court fee as fee is £205 not £120 – difference’

37.   August 2014

a.       Following another emergency admission to Hospital for BFX, ABC RTM Company Limited immediately file a claim [CLAIM2014] for alleged arrears from 2011-2014. Approximately £4k.

38.   November 2014

a.       From the Court: Claim [CLAIM2014] stayed until February 2015, by which time the Defendant is to serve his Defence and in default shall file and serve further medical evidence supporting his inability to do the same.

39.   September 2015

a.       Claim stayed until end of October 2015

40.   November 2015

a.       Claim stayed until Jan 2016

41.   8^th January 2016

a.       BFX makes an application for summary judgement [of CLAIM2014] that the claim be struck out, as it is a relitigation of [CLAIM2011]

42.   Feb 2016

a.       Transferred to local Court.

43.   31^st March 2016

a.       There was a hearing of my application (I think)

b.       From the Court, re [CLAIM2014]

c.       IT IS ORDERED THAT

d.       The hearing of today’s date be adjourned

e.       The Claimant to file and serve a fully Particulars (detailed) Particulars of claim [sic] 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 Claimand may advise to address by 22 april 2016

f.        The Defendant to file and serve a detailed defence addressing the Particulars of Claim in paragraph 2 above by 12 may 2016

g.       If the Defendant wishes the application of today’s date to be relisted (upon consideration of the fully particularised Particulars of Claim), the Defendant should write to the court, at the same time as filing a defence, with a copy of this order, asking for the Court to relist the application for hearing with an estimated length of 1 hour 30 minutes (30 minutes of it being reading time). In the event that the application is relisted, both parties to file and serve detailed statements addressing the subject matter of the application 7 clear days before the hearing.

44.   17^th May 2016

a.       From the court:

b.       “IT IS ORDERED THAT

The Defendants application be relisted in accordance with the order made on the 31^st March 2016 on Monday 27^th June at 15:30pm with an elh of 30 minutes,not to be heard by telephone” [sic]”

45.   June 2016

a.       I think there was a hearing, possibly. I am looking for the paperwork. I attended the hearing directly from a different regional Hospital to the usual one, where I was being treated for a brain infection. We got our heads bashed together by a clearly infuriated Judge, Judge advised ABC RTM c/o TUV Managing Agents to get a solicitor, tells BFX to be clearer in what he says. Nothing further was heard. Until…

46.   7^th April 2017

a.       BFX has an invoice for 1066.00 from TUV Managing Agent c/o ABC RTM Company Ltd

47.   August 2017

a.       BFX mortgage sold from ‘Mortgage Company-one’ to ‘Mortgage Company-two’

48.   13^th September 2017

a.       BFX received an invoice for £5,000 for his share for new windows to BFX’s block. It seemed complicit with s20 LTA 1985 etc. BFX pays £5k.

b.       There was a lot of confusion during this process, I am pinning down the paperwork, but it was paid. The total invoice was not split as per the lease – Leaseholders were asked for funds on a per window basis, but the Lease says the total should be summed and divided by the number of units.

c.       N.B. BFX’s flat is in a conservation area, and the price reflects expensive windows, as specified by local planners. There were other attempts to put in cheap, nasty windows, but BFX was able to stop this by making informal representations to the local Borough Council – who in turn contacted TUV Managing Agents, who in turn eventually put in a proper planning application for proper windows, which was approved.

d.       There was a lot of confusion during this process, I am pinning down the paperwork, but it was paid. The total invoice was not as per the lease – Leaseholders were asked for funds on a per window basis, but the Lease says the total should be summed and divided by the number of units.

49.   12^th October 2017

a.       BFX receives invoice for service charges (or statement of account): £4,800 approx. No payments are made by BFX

50.   25^h September 2018

a.       BFX receives an invoice (or statement of account) for a total of £492.

b.       It appears they have decided not to collect this amount

51.   March 2020

a.       Claim2020 from ABC RTM Company Limited c/o Company Director (not TUV Property Management) for £890 plus £70 Court fee. BFX has not been paying his fees because the management of the block is terrible.

 

 

[BankFodder]

First of all – it is clear that the whole thing is pretty complex – and I hope that it is within the ability of the people on this forum to give you good advice. However there may be difficulties. Certainly my knowledge of landlord and tenant law is not very sharp.

 

I understand that the whole problem stems from service charges which have not been properly justified and which are claimed by a management company which you say is not maintained the building correctly.

A feature of this management company is that they are not operating at arm’s length because two of the directors are residents of the building – and I must say I wonder how that management company was ever appointed. It seems clear to me that this was not necessarily a wise move.

 

This is the issue which has existed since 2006 and I suppose the amount of money which is being claimed has risen over the years because I understand that no money has been paid other than approximate £6000 which is apparently paid directly by your mortgage lender after they were sent a copy of a default judgement which they obtain in 2011.

Did that judgement in some way order that the lender pay this money? This seems extraordinary. Who is the lender please?

Then the judgement set aside – but the money was never repaid.

Since then, no more money has been paid and so the management company started pursuing a new outstanding sum of money.

It’s still ongoing.

 

It’s very difficult to understand it all – but how many flats are in the property? What all the other people think of it? Are the two directors living together – or do they occupy separate flats?

Are they well liked by the other leaseholders?

 

I don’t think there’s much to do until you receive a response to the defence that you have filed – which is presumably the very refund that I suggested to you in your other thread.

Although things a little bit clearer now that you have laid this out – I’m still pretty confused.

 

It certainly seems that the two directors – because they live on site and are completely aware of your movements, have taken the opportunity – each time you are hospitalised – to issue proceedings and presumably in the hope that you won’t be able to put in a defence and they will get a default judgement.

Very nasty stuff.

 

 

Is the building still in disrepair?

[AndyOrch]

Defence due this coming Monday   6th April by 4.00pm.

[BlurredFX]

Thanks guys,

 

I've been sorting some other problems out, and they are done now.

With regard to this issue, I have almost finished scanning all the documents, which is proving useful in sorting them all out.

The other side used to like to send three invoices in one month, and all kinds of rubbish.

I am nearly there with it - it is very time consuming.

I have yet to hear anything from the Court

- I sent my defence in in good time, it was asking them to substantiate their claim.

BankFodder, I will try and answer some of your questions, but I hope I do not muddy the waters too much.

 

On 28/03/2020 at 20:03, BankFodder said:

First of all – it is clear that the whole thing is pretty complex – and I hope that it is within the ability of the people on this forum to give you good advice. However there may be difficulties. Certainly my knowledge of landlord and tenant law is not very sharp.

 

It is quite complex, but I have a good handle on it.

I have learned quite a bit of the relevant law, and most of it is referred to in my various defences etc, so I will possibly need to distil that from the documents.

 

On 28/03/2020 at 20:03, BankFodder said:

 

A feature of this management company is that they are not operating at arm’s length because two of the directors are residents of the building – and I must say I wonder how that management company was ever appointed. It seems clear to me that this was not necessarily a wise move.

 

 

This arrangement is quite common.

There are 18 flats.

RTM (Right To Manage) Legislation came about in 2002 (or that when the law is) .

 

From the link below 

"The Commonhold and Leasehold Reform Act 2002 provides a right for leaseholders to acquire the landlord’s management functions by transfer to a company set up by them – the Right To Manage (RTM) company.

 

The right was introduced, not just as a means of wresting control from bad landlords, or managing agents, but also to empower leaseholders, who generally hold the majority of value in the property, to take responsibility for the management of their block." according to this link:

https://www.lease-advice.org/advice-guide/right-manage/

 

Basically, it means there where there is sufficient co-ordination between the leaseholders, they can run their own block.

Two leaseholders are directors, though the current two are not currently residents here - they are buy-to-let investors.

 

It's a small town.

One of them was previously resident and lives round the corner, the other ones lives round the other corder.

This RTM company that we technically own, then appoints a professional Managing Agent to deal with the day-to-day stuff and advise them and/or manage bigger issues.

 

The problem arises because the management of the block was originally set up as the landowner (Landlord) was absent and uninterested. The Landlord he has certain rights and responsibilities. He exercised his right to collect a token ground rent, but never bothered with his responsibilities to maintain the block.

 

So.... the leaseholders set up their their own company and did it for themselves. However, they were not authorised by the Landlord to do so. They just created the company and took on the responsibilities - I imagine the Landlord just let them get on with it to save himself a job.

 

By going down the RTM route in 2014, and setting up a new company (point 31/31a) they took over the responsibilities of the Landlord - and I have paid since that date, except for recently. I have also paid £5k for some windows that had to be replaced. Before 2014 they had no right to collect the money - not that it stopped them!

 

On 28/03/2020 at 20:03, BankFodder said:

This is the issue which has existed since 2006 and I suppose the amount of money which is being claimed has risen over the years because I understand that no money has been paid other than approximate £6000 which is apparently paid directly by your mortgage lender after they were sent a copy of a default judgement which they obtain in 2011.

Did that judgement in some way order that the lender pay this money? This seems extraordinary. Who is the lender please?

Then the judgement set aside – but the money was never repaid.

Since then, no more money has been paid and so the management company started pursuing a new outstanding sum of money.

It’s still ongoing.

 

They are only claiming £1000 off me this time, which is 'arrears' since I've not paid in 2019 to date - it costs ~£1100 per year, which I have been paying since 2014.

My point is that they should be applying the ~£6k they took off my mortgage provider (20c) to the account, and I should be ~£5k in credit.

The Judgement did not order the Mortgage Company to pay it.

What happened is perfectly normal though - except for the fact they were not legally entitled to do it - they just told the Court they were the Managing Agent, which isn;t technically true (19a-d). When you sign a long-lease (999 years, or close to it, in my case) it comes with certain obligations to pay for the maintenance of the building, and if you do not, then the Landlord (or RTM Company) can request 'forfeiture' which means they basically rescind the lease as you have breached the terms. The rationale being that if I did not pay towards repairing a supporting wall, it would affect other leaseholders.  

 

If forfeiture were to happen, the mortgage company would lose their security as the lease has been forfeited. They are then left with a homeless mortgage payer with no assets or security (because the Landlord forced forfeiture). So what happens, in practice, is the mortgage company pays the outstanding fees, on production of a CCJ (see 19-20c)- which they did. The CCJ was later set aside (24a).

 

On 28/03/2020 at 20:03, BankFodder said:

What all the other people think of it? Are the two directors living together – or do they occupy separate flats?

Are they well liked by the other leaseholders?

 

I don’t think there’s much to do until you receive a response to the defence that you have filed – which is presumably the very refund that I suggested to you in your other thread.

Although things a little bit clearer now that you have laid this out – I’m still pretty confused.

 

It certainly seems that the two directors – because they live on site and are completely aware of your movements, have taken the opportunity – each time you are hospitalised – to issue proceedings and presumably in the hope that you won’t be able to put in a defence and they will get a default judgement.

Very nasty stuff.

 

Is the building still in disrepair?

 

Some of the other leaseholders think I am terrible, but they do not understand what happened, or have been fed a half-story - they just get told I was taken to Court and they got their maintenance charges, but there has never been mention of the case they dropped, not the fact the CCJ was set-aside, or all the rest of the details. Nor does it get mentioned that 'we' (leaseholders) had to pay £1800 in fees to the Managing Agent for failed litigation.

My voice has previously been drowned out, mainly due to my previous frail health - but that has changed, at least to some degree.

The directors of the RTM company have changed to two of the leaseholders that do not live onsite, but they are fully aware of what has happened. They live within half a mile. This is quite a small town. There is a cabal of about half a dozen of them, old acquaintances, who know what is going on, and the other leaseholders just acquiesce - pay their service charges, and collect the rent.

The root problem is this: Before I purchased my lease, the existing leaseholders set up a company to deal with day-to-day maintenance issues because the Landlord couldn't be bothered - but it was not done properly. They employed a small Managing Agent (PQR Managing Agent) (my point  2b)) to manage things on their behalf. Then, that small Managing Agent sold-up to a fella who bought a number of similar companies for form the larger TUV Managing Agent (my point 4a). This new larger Managing Agent advised my co-leaseholders to take me to Court (5a) for not paying maintenance fees - but when it got to Court he couldn't substantiate his claim and it went dead (my point 12). Then they waited till I was in hospital (point 13-20c), and and obtained judgement in default (17a) - which was subsequently set-aside, after my mortgage company paid (20c).

The owner of the enlarged managing agents (TUV Managing Agents) was inexperienced, and didn't know the law. He gave my co-leaseholders bad advice, and even though he has now realised the problem, he is covering it up, because if I can get things put right, then we (me and my co-leaseholders) can probably pursue him for the money he has cost them, management fees and all kinds - he is in it up to his neck, so he continues to lie. 

I can pretty much tell what their case is going to be for the £1000 - I have a statement of account from when the RTM company took over in 2014 (Point 31a) and that is what they are going to rely on to formulate their figure.

My argument (counterclaim?) is that the £6k they took from me (point 13-20c) should be applied to my account, and fees removed from 2006-2014, in which case they owe me £5k. (£6k less £1k arrears).

Quite how I communicate all this to the Court is a tricky one - it's not like I have not tried in the past, though I have not really been able to press the matter for health reasons. Hopefully this time I can get the matter finally bottomed out.

One Judge said I should pursue my mortgage company, as they paid out when they shouldn't have - after all I did not have a contract with the pre-RTM company. They could argue that the new company RTM company (formed in 2014 - my point 31a) has no connection to the old company, but that isn't true because the money in the bank was transferred from the old company to the new company - and my invoices show a balance from the old company, that was subsequently written off with the failed case from 2013 (32-33a).

My original mortgage was with a more mainstream lender, but the mortgage was subsequently sold to a UK mortgage company who are known for being nasty - which is one reason I have not chased them for the money.

I am unsure about the law of transferring the undertakings of one company to another - that could be a stumbling block if they tried to claim this new company has no connection to the old company that won the judgement in derfault, as I am unsure where the law stands - but it seems clear from the paper trail that they transferred the money they had, plus the liability they claim I had to them, to the new RTM company.

It's a right old pickle. How do I even go about presenting this to a Judge? The version of events I have done above in the first post needs to be refined, and I need to reference the documents I will rely upon the verify those points, but how do I present it all? Upon receipt of their properly particularised claim, how do I respond? I basically know what their claim will be, it will be a statement of account from 2014 - which would mean i DO owe £1k - but they are conveniently glossing over what happened prior to that - or at least that is how it looks in the online account I have with them.

 

[BankFodder]

I'm going to say that I'm really not sure what to advise. I'm completely out of my depth because of the subject matter and also the complexity of it all. I really hope somebody else can come along and help you – but I'm not sure what I can do.

Keep us updated because other people will be interested to see what happens and also it may prompt somebody to contribute.

[BlurredFX]

Hi Folks,

 

I have an update.

 

I filed a defence saying please particularise your claim.

 

On Monday, I have had a form from the Court noting I have defended the claim and "It appears that this case is suitable for allocation to the small claims track". It goes on to say I need to send the N180 (SCT questionnaire) back to the Court by 22nd May. I can provide a copy, but I am sure it is standard procedure.

 

Today, I have received a letter from their solicitor, and a statement of account dating back to 2014. Copies of both below.

 

 

 

Notably, what is missing is any statement of account from pre-July 2014. 

 

You will see that the balance they claimed in line 1 of the transfer is the amount carried over that they were claiming. Line 22 and 23 show them crediting this amount - then I paid the rest of the fees from 2014 onwards (because I have no problem with that).

July 2014 is when the unauthorised 'neighbours collective' company transferred everything to the properly authorised RTM company.

 

My argument is that the unauthorised 'neighbours collective' claimed £6,000 from me, which was paid in 2011. I subsequently had that CCJ set aside, but have not had that amount credited back to my account. I want it applied to my a/c, with 8% interest.

 

I have a feeling how they wound up the previous company, is going to be important. How does one go about formally transferring the assets and liabilities from one company to another? I suspect they will not have done that, which would potentially leave me in a stick. I have it in writing that the funds in their bank a/c was transferred to this new company, and the statement shows that they were certainly claiming the money from pre-2014. I suspect they could argue this new RTM company is completely separate from the previous unauthorised company that was wound up. I did make a counter claim that was stayed when they didn't turn up.

 

What I want to do is send a letter back to their solicitor, advising of the other amounts and a bit of history, copies of the Judgement being removed from the register etc, and hopefully the RTM company will listen to their solicitor when he explains my position. THe agent has filled them full of lies having made promises he cannot keep - that is the root of the problem.
 

However, I am unsure of that is the best course of action, or what the implications might be.

 

I suppose my questions are a) how does one wind up a company - I think the notice in the Gazette was possibly when I was in hospital. and b) all things considered, should I contact their solicitor with my points and see what happens, or leave it and wait for a Court date? Do I write and inform them I intend to make a counter-claim for £6k plus statutory interest since 2011?

 

Paying the amount due is not a problem, I have been making provision to keep up with the charges... But I want my £6k back! WITH INTEREST!!

 

Thanks guys, I hope someone can shed a bit of light on my questions??

TBH I am happy that the pre-2014 debt is unenforceable, which is why it was withdrawn, but I honestly suspect their solicitor will be non-the-wiser to that. I honestly believe the Directors of our RTM are unaware that the previous judgement was set-aside - the agent has not told them!! I could almost guarantee it.

BFX

docs2.pdf

[BankFodder]

I'm completely out of the loop so I can't remember what has gone on. However, the documents you have just received, are they in response to an SAR?

[BlurredFX]

Hi BankFodder,

 

Thanks again.

 

I submitted a defence to their claim asking that they particularise their claim, and this is the reply I have had. I.e. letter and statement of account from their solicitor, and an allocation letter from the Court.

 

BFX

 

 

Edited May 14, 2020 by BlurredFX

[BlurredFX]

Evening / Morning Folks,

 

I've completed my response to their solicitor. It is a narrative of what happened and when. It has taken me a while to produce, and a whole lot of stress. It's hard work having to relive some of the events, frankly.

 

To re-cap, this issue goes back to 2009, and there have been several claims made against me. One was paid by my mortgage holder, but that judgement was set aside.

 

Owing to more disputes, where I stopped making payments, they have commenced another claim.

 

I asked them to particularise it, and they did so in the PDF in the above post, and this is my response.

It has driven me mad, I don't know why looking back, but it has. My sleep is all over the place, hence I am posting at this time of day!

Here it is, and I would be hugely grateful for any input or even someone to check my grammar etc.

I have copies of all the documents I refer to that I can (relatively) easily post up.

Thanks again,

Blurred

Blurred_FX_Response_to_solicitor_3_June_2020-1-merged.pdf

[BlurredFX]

Evening Folks,

 

This matter rumbles on, but we seem to have crystallised it to one specific point.

 

The point being: Does transferring funds (assets) from one company to another, then winding the first company up, infer a transfer of liabilities also?

 

Re-cap

 

To re-cap, I am in a drawn-out dispute with the RTM company managing the block of flats in which I have a long-lease0

.

Historically, we had an absent Landlord, and before my tenure began in 2006, the neighbours formed a ‘neighbours collective’ to manage day-to-day maintenance. I refused to pay until an RTM company was set up, not least because the building was deteriorating rapidly.

 

This neighbour’s collective employed a company to run manage basic cleaning etc.

 

In 2011 (see point 16 on the timeline in the first post) the manager employed by the ‘neighbours collective’ decided to prosecute me for non-payment while I was incapacitated in hospital. They subsequently obtained a Judgement-in-default. They made false representation to the court that they were entitled to take such action, and then went on to threaten my mortgage company with forfeiture of the lease by signing off as the lessor (freeholder) (see 19b) even though that is/was demonstrably false. My mortgage company paid up without question, even though the applicant was lying.

 

The Judgement was later set-aside (see 24a). The neighbours eventually followed the RTM process in 2014 and acquired the Right-To-Manage. The ‘neighbours collective’ company was subsequently wound up, with all the money in their bank account transferred to the new RTM company.

 

Getting to the nub of the issue.

 

The RTM company have started new proceedings for funds I am withholding – though I have the resources to pay it straight away if needed.

 

My argument is that as the money in the ‘neighbours collective’ bank account was transferred to the new RTM company, the new RTM company is responsible for the ‘neighbours collective’s’ (old company) liabilities i.e. re-paying the funds they took by making false representations (either accidentally or on purpose) or at least applying those funds to my balance.

 

I base my assertion on the fact I have a letter from them that states ‘we ensure that all the monies that are currently in the old bank account will be transferred to the new account’. This refers to transferring the money from the ‘neighbours collective’ bank account to the newly-formed RTM company’s bank account.

 

They base their assertion on the fact the ‘neighbours collective’ company was dissolved in 2014/15. In an email of 23^rd September 2020, their solicitor states “Please also note that there has been no “retreat” in terms of our client’s, or this firm’s position. It is a fact that the companies are 2 separate legal entities; they are 2 separate incorporated companies with different company numbers, 1 of which is dissolved. This has always been the case and will remain so.”

 

I responded with a copy of the letter showing their planned transfer of funds, and have heard nothing since I replied to them on the 23rd September (2 months ago).

 

So, the big question is, who is right? I suppose the ultimate question is:

How would this situation look in Court? Does transferring funds (assets) from one company to another, then winding the first company up, infer a transfer of liabilities also?

 

This case is a complicated nightmare, and this is the abridged version, but it seems myself and their solicitor have nailed it down to this final point - though their solicitor is not responding.

 

I hope someone can help on this narrow point.

Blurred.

[BankFodder]

Without going through this complicated thread into much detail, I would have thought that if money which have been paid to the first company for particular purposes was then transferred away to a second company, then I would have thought that the second company has to hold the money in trust to be applied to those purposes for which it was paid.

I really can't see that it could be anything else

[BlurredFX]

3 minutes ago, BankFodder said:

Without going through this complicated thread into much detail, I would have thought that if money which have been paid to the first company for particular purposes was then transferred away to a second company, then I would have thought that the second company has to hold the money in trust to be applied to those purposes for which it was paid.

I really can't see that it could be anything else

 

Thank you BF,

 

Pretty much my thoughts, too.

 

I do not suppose anyone reading this might know where I might find some legal basis? My gut reaction is that one cannot simply transfer a companies assets without transferring the liabilities - lest everyone would run up debts, and leave them behind!

I am currently looking into how they wound the 'residents collective' up. It looks like the funds should have been dispersed to the creditors (the neighbours who had paid the money) but that was certainly not done.

 

I will keep looking into it. Thanks for everything so far.

 

Blurred

[BankFodder]

I'm afraid I think that you are going to be looking at some serious legal advice from some people who specialise in trust law. We probably don't have the experience here on this forum.

We certainly like to be kept up-to-date – but I think the you might be jeopardising your position if you simply stick with us and don't start finding a trust lawyer to help you out.

 

Of course it may not be cheap but it certainly sounds to me that if the company was wound up for no particular reason and it had funds, then you're right the fund should have been returned to the creditors.

 

And if they were transferred to the new company then I think that that company has some very strict duties to attend to. If there is any breach of trust then the trustees could be held personally liable. I wonder if they know that.

 

The trustees would be the directors of the new company.

[BlurredFX]

Thanks BF,

 

Thank you for your candid thoughts, as ever.

 

I can probably rustle up the resources to get a solicitor on-side, and I have pretty much resigned myself to doing the same.

 

I will do some more digging, and see how far I get, and see if I can draw their solicitors attention to those points. I am currently reading s1003/4/5 of Companies Act 2006, so we will see where I get too.

 

It is of great reassurance to know that I am not alone in my thinking. I am almost ready to pay them and draw a line under the whole issue and crack on with my life, but 'I didn't come this far to only come this far' type of thing.

I will keep this thread updated. Thanks again.

 

Blurred

[Lauren125]

I am reading your post because I have a similar issue with unreasonable charges. 

Researching the issue on line

 

. I found the following article on line.

 

 In a nutshell a legal loophole currently exists such that the freeholder can recoop legal fees from the leaseholder even if the leasholder wins the case!!! (Sometimes this amounts to '000s of £'s)

 

The government are going to address this yet if you have a court case prior to the change in the law  (I have)

 

 if a leasholder who has been overcharged, wins the case then has to pay the freeholders legal fees is unspeakably unjust. 

 

Please keep me updated how you get on.  I feel like i am in a noose with these guys no justice even with the courts! 

 

[BlurredFX]

On 22/01/2021 at 18:55, Lauren125 said:

I am reading your post because I have a similar issue with unreasonable charges. 

Researching the issue on line

 

. I found the following article on line.

 

 In a nutshell a legal loophole currently exists such that the freeholder can recoop legal fees from the leaseholder even if the leasholder wins the case!!! (Sometimes this amounts to '000s of £'s)

 

The government are going to address this yet if you have a court case prior to the change in the law  (I have)

 

 if a leasholder who has been overcharged, wins the case then has to pay the freeholders legal fees is unspeakably unjust. 

 

Please keep me updated how you get on.  I feel like i am in a noose with these guys no justice even with the courts! 

 

 

 

Could you re-post think link please? I could do with substantiating what you say as it is clearly quite important. Is it a legal loophole, or something written into the lease?

[BlurredFX]

Hi Folks,

 

I have a very long and involved case that goes back to 2009, but this is a more general enquiry about a text I received from GOVUK.

 

I've received a test message about mediation. I believe it is genuine, and is from 'GOVUK' and states:

 

Small Claims Mediation Service: Telephone Mediation 2021-02-08 from 13:00 to 15:00. If you can't answer YES to all statements, mediation is NOT suitable for your case and you must contact us to cancel

 

That is all it says. It seems incomplete, and probably a rather strange way to go about asking a few questions.

 

Has anyone had similar recently, or is otherwise able to cast some light on the issue? I could phone the Court, but they were taking a long time to answer earlier, so I thought I would ask here.

 

Thanks very much,

 

Blurred

 

Ongoing thread: https://www.consumeractiongroup.co.uk/topic/420694-repeated-litigation-by-different-property-management-companies/

[AndyOrch]

https://www.google.com/search?client=opera&hs=Ol2&sxsrf=ALeKk02hZGeSV735u-WSyjNg_TEkiy734A%3A1612365241669&ei=ub0aYLutKMeRhbIP7b2oyAs&q=in+a+nutshell+a+legal+loophole+currently+exists+such+that+the+freeholder+can+recoop+legal+fees+from+the+leaseholder+even+if+the+leasholder+wins+the+case&oq=in+a+nutshell+a+legal+loophole+currently+exists+such+that+the+freeholder+can+recoop+legal+fees+from+the+leaseholder+even+if+the+leasholder+wins+the+case&gs_lcp=CgZwc3ktYWIQDFDgI1jgI2DOMWgAcAB4AIABAIgBAJIBAJgBAaABAaoBB2d3cy13aXrAAQE&sclient=psy-ab&ved=0ahUKEwj77ejLgM7uAhXHSEEAHe0eCrkQ4dUDCAw

[AndyOrch]

 

 

Go to post #2 in the above link...you should have received EX730 with your Proposed Notice of Allocation form and DQ

[BlurredFX]

It is they who are taking action against me, i.e. they initiated the court action.

 

Does that mean they can take me to Court, lose, and then hit me for fees? OUCH!

[Lauren125]

Dear Blurred,

 

Yes this paying the loosers legal fees is criminal. Andyorch has posted the link above.

 

 The wording is in the lease. (And I am told in most leases).  The wording in mine 'The costs incurred by the management company in bringing or defending any actions or proceedings against or by any person whatsoever.'  If you are with one of the big management companies this caveat is likely to be in.  Take a careful look.

 

Please also write to your MP about this, I have written to mine. 

 

 

[Manxman in exile]

Does Unfair Contract terms legislation not apply to contracts relating to land?  (Maybe it doesn't - I don't know...)

 

I would find it hard to imagine anything more unfair than a Catch 22 type term in a lease which means that if the freeholder breaches the T&Cs somehow, and the leaseholder has to sue them to enforce the lease, that the leaseholder who is in the right can be liable for the wrongdoing freeholder's legal fees.

 

That would be perverse and unjust, and a backdoor way of discouraging leaseholders from enforcing their contractual rights - wouldn't it?

 

(I place no credence on a Secretary of State's vow to put this right.  It doesn't necessarily mean the "wrong" exists in the first place - just that the SoS (or a "Special Advisor") has spotted a PR opportunity that makes them look good

Edited February 4, 2021 by Manxman in exile

[AndyOrch]

https://www.legislation.gov.uk/ukpga/1977/50

[Manxman in exile]

Are you referring to Schedule 1?  Does that prevent its application to contracts re interests in land?

Edited February 4, 2021 by Manxman in exile

[AndyOrch]

Contracts in general......with regards to property/ land you need to read the Law of Property Act 1925.

 

https://www.legislation.gov.uk/ukpga/Geo5/15-16/20/contents