Leasehold Flat Service Charge Issues

[ADDLED]

Hello everyone, hoping again that someone can help with an issue.
I'm having problems with our managing agent refusing to serve our twice yearly service charge demands as per the terms of our lease. Our building is RTM and the RTM co appointed a managing agent to look after day to day affairs. Theyve started a portal and told everyone to download their service charge demands and annual accounts from there, but our lease states that the demands must be delivered to me, rather than make me go and collect it:

The lessor shall prior to each of the said half yearly dates on which the Interim Service Charge shall become due deliver to the Lessee at the Flat a statement of the amount of the Interim Service Charge that shall be payable on such date..."
"As soon as practicable after the signature of the Certificate the Lessor shall furnish to the Lessee an account of the Service Charge... and upon the delivery of such an account to the Lessee at the Flat"

I've opted out of the portal service and asked to be served the demands as per the lease terms but the managing agent is refusing to send me the s/c demands, insisting I download them from their portal. Even the emails that I receive directing me to their portal state "service preference paper", so they've acknowledged my preference yet are refusing to comply with it.
I've since had a letter from them saying that they sought legal advice and a subsequent email arrived from JB Leitch demanding payment and legal fees. I emailed back telling them of the above but JB Leitch responded by writing to my lender demanding payment and threatening forfeiture of my lease. My lender wrote back to them requesting a specific form, but I cant remember the name of it.

I'm not disputing that I have to pay service charges, as per the terms of my lease, but I'm really angry that the managing agent feels that they can ignore my lease and make their own terms up as they see fit. It would appear the JB Leitch have given duff legal advice for which they want to be paid, and the managing agent has acted on it, yet neither has complied with the lease terms.

What can i do?
tks ADDLED

[JP Legal]

It seems in principle that if delivery to the flat has not occured, then by contract they haven't done so. They may well argue that they delivered notice of the portal, but you have specifically opted out of using the portal. Did they give you an option to opt out or did you just refuse to use it?

However, regarding the terms of the contract that you have posted, it does not appear to say that payment becomes due upon delivery of the statement to the Lessee. Therefore, I would still recommend you make the payment as their failure to deliver does not appear to remove your liability for it.

[R0b]

It would appear the JB Leitch have given duff legal advice

Not a landlord and tenant lawyer expert but I think what you have said just about sums it up. Here's my take on things:

1. For a valid service charge or interim service charge to be effective, it should comply with the terms of the lease. Failure to comply means there cannot be a default on your part.

2. Either the managing agent instructed to handle the s/c demands is either a novice at this or they are simply incompetent. The very reason why we have contractual agreements is to enable parties to know what they have to comply with and when. So the managing agent cannot simply demand that every leaseholder should now access the s/c demands via portal, because in doing so, that would amount to a variation to the lease. That would beg the question:

a. Do they have the necessary authority from the landlord to make variations to the lease?
b. Does the lease contract say anything about them having the ability to deliver the s/c demands other than at the flat?
c. Alternatively, is there a right in the contract for the landlord to vary the lease terms and if so in what circumstances and/or conditions does it apply to?

Seems to me the managing agent is trying to serve the s/c demands using the least time consuming method possible. In the absence of any explicit right to do so, any service demand issued via the portal would be invalid for the purposes of delivering it to the flat.

Nothing in your post indicates what form of delivery should take place and in the absence of that, then postal or hand delivery would suffice. Playing devil's advocate, if the words 'at the Flat' were removed then it may be arguable that issuing the s/c demands via the portal may constitute a delivery for the purposes of serving the demand. But that is irrelevant anyway since those words have been explicitly included in the provision for service.

3. As a side note, because the RTM Co. is using a managing agent on their behalf, I believe any demand notice must be in the name of the landlord and not the managing agent. If it's in the name of the managing agent then I think it would be considered an invalid notice.

4. Section 20 of the Landlord and Tenant Act 1985 may come to your aid at some point depending on how you take this forward. It says that service charge demands have to be served within 18 months of the charges being incurred otherwise they are not recoverable.

NB. the 18 month rule does not apply if the s/c demand has been notified within that 18 month period that the s/c have been incurred and that the tenant is required to contribute to those costs. My reading of this is that an interim s/c demand would not be sufficient for a notice under section 20 because they are anticipated charges rather than charges that have actually been incurred, unless they are claiming those interim charges have already been incurred.

5. If I understand correctly, the fact that you have informed JB Leitch of the issue and they have ignored what you have said instead threatening forfeiture may suggest they are negligent, or that they know what you are saying is correct but are deliberately choosing to ignore you and not respond in the hope you might simply pay up.

6. As a regulated law firm, they are likely to be in breach of their regulatory obligations which is not to mislead or try to take advantage of a third party. Any competent law firm with the relevant knowledge and skill set in landlord and tenant law should know what you are talking about and either go back to their client or explain why they think you are wrong. You could report them to the SRA for breach of those obligations. Equally, repeated demands and threats of forfeiture may amount to harassment if they continue to pursue this. Should the landlord attempt to exercise a forfeiture via peaceable means, you may be able to claim damages for trespass, possibly wrongful termination of the lease and/or reinstatement by an order of the court.

How you choose to respond is up to you, though I do not think it would be unreasonable to go back to JB Leitch and point out that they have completely ignored your last correspondence as to why you believe the s/c demand is invalid and demand an explanation from them as to why they believe it is not invalid. Otherwise you will continue to deem the demand invalid and contrary to the lease terms. Further demands and threats will be treated as harassment since there is no legal basis for the demand and fees to be paid, for which you reserve your rights as well as any rights and damages in respect of attempts to unlawfully forfeit the lease.

Again, to repeat, whilst I am relatively confident in what I have said, I am not a landlord and tenant expert so you may do well to seek some initial legal advice either through an independent solicitor or if you have legal expenses insurance you may be able to seek advice that way.

[ADDLED]

Rob I cant thank you enough for your reply, you've confirmed what I thought was where I was but have given it much more context. I need to prepare a response to Leitch and also the managing agent so will go back over correspondence over this weekend and reply with your advice.
A couple of things Im intrigued by:
1) I only found out that Leitch had approached my lender because my lender erroneously collected an incorrect DD payment in March, triggering a DD recall. The subsequent chat with my lender revealed the letters from Leitch demanding payment. At no point had I been copied into any of this correspondence.
2)"the 18 month rule does not apply if the s/c demand has been notified within that 18 month period that the s/c have been incurred " Ive googled this, but the term 'notified' seems a bit flabby and vague. What dyou reckon?
Tks again. ADD

[R0b]

1) I only found out that Leitch had approached my lender because my lender erroneously collected an incorrect DD payment in March, triggering a DD recall. The subsequent chat with my lender revealed the letters from Leitch demanding payment. At no point had I been copied into any of this correspondence.

That's somewhat strange. I can only think that those demands to the lender may be an attempt to coerce you into paying up, possibly if your mortgage terms say that it is a condition of your mortgage that you have to keep your payments or service charges up to date otherwise you will be in breach. But then, I don't know how the lender would know if you were in breach of your lease terms since it has nothing to do with them and they obviously do not know all of the facts.

2)"the 18 month rule does not apply if the s/c demand has been notified within that 18 month period that the s/c have been incurred " Ive googled this, but the term 'notified' seems a bit flabby and vague. What dyou reckon?

From my limited reading and research, I think you probably need to have a read of the case London Borough of Brent v Shulem B Association Ltd [2011] EWHC 1663 (Ch). In my earlier post I mentioned section 20 but the correct reference is actually section 20(B), but anyway based on this case, the court essentially said that for a s.20(b) notice to be valid:

1. The notice must be sent in accordance with the terms of the lease i.e. in your case, delivered to you at your flat.

2. Per the judge (para. 65 of the judgment):

Accordingly, my conclusion as to interpretation of section 20B(2) is that the written notification must state a figure for the costs which have been incurred by the lessor. A notice which so states will be valid for the purpose of subsection (2) even if the costs which the lessor later puts forward in a service charge demand are in a lesser amount. Secondly, the notice for the purposes of subsection (2) must tell the lessee that the lessee will subsequently be required under the terms of his lease to contribute to those costs by the payment of a service charge. It is not necessary for the notice to tell the lessee what proportion of the cost will be passed on to the lessee nor what the resulting service charge demand will be.

[atticus]

I have in the past acted for clients in collecting unpaid service charges. After 3 letters to the leaseholder, a letter to the mortgage lender would follow. Primary mortgage lenders would often pay, to protect their security.

[R0b]

Thanks Atticus, that's interesting.

Surely that's risky for the landlord since it opens them up to a possible claim for tortious interference with contractual relations if the mortgage lender has no legal obligation to pay? Even more so if said lender decided to try and recoup that service charge back from the lessee when the underlying right to demand the service charge was invalid?

No doubt it works if that's what landlords and law firms are doing as a tactical method to recover the service charge but it sounds to me like it is also opening up a can of worms that neither the landlord nor the law firm/debt collector wants to have a claim against them.

[ADDLED]

A quick question: Im considering sending a SAR to the managing agent and the RTM co, but am I right in thinking that a SAR request can be ignored if its to be used in an ongoing legal dispute?
Ironically, I sent a SAR to the managing agent a couple of years ago and they sent me a password and link to their portal!

[ADDLED]

I have in the past acted for clients in collecting unpaid service charges. After 3 letters to the leaseholder, a letter to the mortgage lender would follow. Primary mortgage lenders would often pay, to protect their security.

Thanks Atticus, that explains what has probably happened. Thankfully my lender didn't scare easily and has sent me copies of their correspondence with the managing agent this week and their response letter goes thus:

Tks for your letter. Please note that we would only consider paying such charges to protect our security and avoid forfeiture of the lease.
We understand that the charges due relate solely to service charges. Therefore, before we make any payment, we require a copy of the notice served under Section 146 of the Law of Property Act 1925.
In order to verify the validity of the Section 146 Notice we would be grateful if you could forward one of the following items as documentary evidence:
1) The customer's agreement
2) Admission of the charges
3) Leasehold Valuation Tribunal determination
4) Court order
Once we have received one of the above items we will commence payment procedure.

So, it appears that JB Leitch are being nastily underhand. Considering Rob's comments on harassment and tortious interference with contractual relations, I'd like to send a stinking email to them, copying in the managing agent and RTM Co. so any advice as to pertinent points to include would be welcome.

Also, in both of your opinions, are the RTM Co also at fault, since the managing agent is acting on direct instructions from them.

tks again ADD

[ADDLED]

Update.
i emailed JB Leitch complaining about them contacting my lender and they emailed back statin that they've passed the matter on to their client and citing their ts and cs:


There is no regulatory requirement to respond to a complaint from those who are not clients of our firm. If we do receive a complaint from an individual or party who is not a client of our firm, we will deal with it as we deem appropriate having regard to the following:

• There is no duty in law or regulatory obligation upon us to respond to a complaint from someone who is not a client and we need not comment on the substance of a complaint;
• We will act in accordance with our professional obligations and regulatory requirements in dealing with any allegations of professional misconduct