Freeholder Has Renaged On Compromise Agreement

[salop11]

Earlier this year I filed a case at the Property LTT against both my freeholder and their managing agents. 75% of my claim was extremely watertight and ultimately on the eve of the tribunal both defendants offered a compromise agreement at 50% of the amount claimed to settle out of court. I accepted this is as in theory it should have been risk free and potentially a lot faster in reaching a conclusion.

The agreement stipulated that the freeholder would settle financially within 14 days. They didn't and they ignored my reminders. A few weeks ago they sent me an invoice for buildings insurance which marginally below the amount I am owed. I wrote back with a copy of the compromise agreement requesting that they offset the two amounts.

This letter was also ignored and they have sent me a 7 day warning letter of legal action.

There are two potential complications:

My property is on the market, I have received offers and I am on verge of accepting one.
The freeholder is a subsidiary of Regis Plc and their managing agent is Pier Management. What Google reveals about both parties is not a pretty sight.

Bearing in mind my circumstances how should I deal with this?



Many Thanks
S

[stevemLS]

Re: Freeholder Has Renaged On Compromise Agreement

Did you get the Tribunal to endorse the agreement as a Consent Order?

[salop11]

Re: Freeholder Has Renaged On Compromise Agreement

No it was just agreed in writing between myself, another leaseholder as joint applicant and both respondents.

[stevemLS]

Re: Freeholder Has Renaged On Compromise Agreement

Was it literally the eve of the Tribunal - what was the Tribunal told had happened?

[salop11]

Re: Freeholder Has Renaged On Compromise Agreement

Yes. I had to write to the judge (delivered by hand as it was the day before) requesting that the tribunal should be stood down as we had settled and I have an acknowledgement in writing to that effect.

[stevemLS]

Re: Freeholder Has Renaged On Compromise Agreement

Did you do that at their request. I think they've had one over on you. So far as the Tribunal is concerned your case has probably withdrawn, unless they were asked to vacate the hearing on the basis that the parties were close to agreement and should be able to resolve the matter without a hearing - but still putting an agreed order before it.

It should have been dealt with by a consent order, which would have been directly enforceable.

As it is, hopefully the agreement you have should be enforceable, but you may have to re-litigate on the basis of that agreement.

[salop11]

Re: Freeholder Has Renaged On Compromise Agreement

Yes it was done at their request and although the tribunal was told that the hearing was vacated on the grounds of an agreed settlement, no consent order was sought.

Should I now take a strong see 'you in court' approach or pay the insurance invoice and then initiate County Court proceeding myself?

[stevemLS]

Re: Freeholder Has Renaged On Compromise Agreement

Have you got a copy of your lease?

If so, check whether the "right of set off" is excluded. It is in most.

If it is, you need to pay the insurance.

It might be worth having a word with the Tribunal Service, explaining the situation, and asking whether it is possible to re-list the matter on the basis that the landlord/agent has not complied with the settlement agreement. I can't find any specific power to do so but they are bound by the CPR over-riding objective and so have to deal with matters justly and proportionately. You never know, if you don't ask….. this would certainly be the quickest, cheapest and easiest route for you.

Unless the settlement agreement is clearly said to be on a without prejudice basis, it will be admissible evidence.

If you have to initiate separate proceedings, you would normally need to issue a further letter before action, in these circumstances, however, depending what you said in your reminders, you may be able to dispense with that stage.

Good luck, they sound like a right shower.

[salop11]

Re: Freeholder Has Renaged On Compromise Agreement

Thanks for your clear reasoning. Not the answer I wanted, but it's best to deal with this eyes wide open.

Asking the LTT to re-open the case seems like a sensible idea. Is there a specific section of the CPR which I could reference as I have looked and cannot find anything obvious? I'm also thinking about asking my local MP to endorse my request to try and give it some extra weight.

What I'm actually going to do as well is go after the individuals involved as they are all members of regulated professions (RICS and the Law Society). Whilst it may not all necessarily stick, it will at least cause them some major inconvenience.

A shower is actually a material understatement. Some of the cases involving Regis / Pier online actually beggar belief. Its a real shame we don't have the equivalent of the US RICO statutes in the UK to deal with them.

[stevemLS]

Re: Freeholder Has Renaged On Compromise Agreement

I've just had a horrible thought, you are in England aren't you? None of the acronyms seem to fit!

I am assuming the Tribunal is actually the First Tier Tribunal (Property Chamber), which took over the functions of the Leasehold Valuation Tribunal in 2013.

If so, they have their own procedure rules which are, unsurprisingly called the First Tier Tribunal (Property Chamber) Rules 2013. Rule 51 enables the Tribunal to set aside a decision disposing of the proceedings, from what you have said, I can't be certain whether that is what they have done although I suspect it is.

In order to do so, the Tribunal must be satisfied a) that it is in the interests of justice and b) that one of four conditions are met, three I think are irrelevant to you but the fourth is that there has been some other procedural irregularity.

You must make application to set aside within 28 days of the decision being sent to you, I am hoping that you are within that time scale - if not, you can still make application using their ignoring of your correspondence as evidence as to why you have not applied in time.

Rule 3 applies the overriding objective in the CPR to the Tribunal Proceedings - have a read through it http://www.justice.gov.uk/downloads/...i-1169-l8-.pdf

Taken together, the power to set aside and the overriding objective might persuade the Tribunal to realist the matter, I am sure you don't need me to make your arguments for you but I would say something like a (professionally represented?) (professional) party used undue influence to persuade a litigant in person to apply to vacate the hearing on the basis of an agreement which they now refuse to honour. It is clear that their conduct defeats the overriding objective.

Had you been aware of the Rules you would have ensured that the agreement you had reached was embodied in a consent order as provided for in Rule 35 [ignorance is no excuse but most judges are fair minded and recognise that litigants in person are at a disadvantage and so are prepared to give a little leeway that they would not extend to represented parties].

It is a bit of a flyer, to be honest and I don't know how the Tribunal will respond. I have no experience in this jurisdiction but do deal with other types of First Tier Tribunal cases where the rules are not dissimilar.

Your MP will hold no sway with the Tribunal and some judges can get a bit uppity if they think that a party is attempting to bring improper influence. If your MP agrees that you have a case, however, I am sure that you could use that in any complaints you might bring to the professional regulators.

If you are thinking of complaining to the law society about a solicitors conduct in relation to the hearing, the law society takes a dim view of solicitors that use their professional knowledge and experience to take advantage of unrepresented parties, which - on the basis of what you have said - seems precisely to be what has happened hear.

I haven't looked at any cases involving the other side and am knackered so off to bed now.

Hope that helps a bit.

[salop11]

Re: Freeholder Has Renaged On Compromise Agreement

Thanks for an extremely comprehensive reply which gives me plenty to go on. Yes I am beyond the 28 day deadline, but I have plenty of evidence to show that they are just stringing things along.