First-tier Tribunal Rejects Claimant's Service Charge Application

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference : CAM/34UG/LIS/2019/0016

Property : 1 [RESPONDENT], [RESPONDENT], Northants [POSTCODE]

Applicant: [redacted]

Respondent: [redacted]

Type of Application : Determination of the reasonableness and payability

of service charges levied for the period 2007–2019

[LTA 1985, s.27A]

: for an order for repayment by the respondent of any

service charges overpaid by the applicant: [redacted]

withhold granting a certificate to satisfy a restriction

on the title (to enable assignment of the lease) based

upon alleged service charge arrears

: for an order that the landlord’s costs are not to be

included in the amount of any service charge payable

by the tenants [LTA 1985, s.20C]

: for an order for costs and/or reimbursement of fees

[Tribunal Procedure (FTT) (PC) Rules 2013,

r.13(1)(b)]

Tribunal Members : [NAME] & [NAME] (Est Man) FRICS

Date and venue of : Monday 25th November 2019 at

[ADDRESS] [POSTCODE]

Date of decision : 24th January 2020

DECISION

Cases referred to :

[NAME] v [NAME]) [COMPANY] [2011] UKUT 255 (LC)

Arnold v Britton [2015] UKSC 36; [2015] AC 1619

[NAME] v Merchant Exchange Management Co [COMPANY] [2016] UKUT 527 (LC)

[NAME] v [NAME] [2015] UKUT 542 (LC); [2016] L&TR 13

Pendra Loweth Management [COMPANY] v North [2015] UKUT 91 (LC); [2015] L&TR

30

[NAME] v [NAME] Co [COMPANY] [2009] UKUT 241 (LC)

[COMPANY] v Karbasi LON/00BD/LSC/2018/0442

[COMPANY] v Ridgway [2018] UKUT 32 (LC), at [77]

[COMPANY] v [NAME] [2018] UKUT 252

• Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 1–5

• Relevant provisions in the lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 6–11

• Material statutory provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 12–19

• The hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 20–40

• Discussion and findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 41–48

1. In this application the applicant [NAME] seeks a determination that, due to certain

failings by the [COMPANY] over the course of many years

to comply with provisions in the lease and statute law that impose preconditions

upon the [NAME]’s liability to pay service charges, sums that he has paid

and more recent sums that he has not should be declared not to be payable, so

that any overpayment by him must be reimbursed by the [COMPANY].

2. He also seeks an order under section 20C of the Landlord and Tenant Act 1985

and also, “in the event that any costs are incurred by the applicant”, a wasted

costs order against the respondent or a third party costs order against “the

current and/or all relevant former directors personally.”

3. Finally, he seeks a determination that the respondent cannot withhold granting

a certificate required by a restriction on the leasehold title, thus enabling him to

assign the lease, on the basis of alleged service charge arrears.

4. For the reasons which follow the tribunal determines that, insofar as the service

charge aspects are concerned :

a. The applicant had for many years paid the service charges demanded and

his agreement or admission, which precludes a determination of the

reasonableness of service charges under s.27A of the Landlord and Tenant

Act 1985, may be implied or inferred from the making of a series of

payments of service charges over a period without qualification or protest:

see [NAME] v [NAME] [2016] L&TR 527 (LC), following [NAME] v

[COMPANY] [2009] UKUT 241 (LC)

b. The more recent, and partly unpaid, service charges have been the subject

matter of an express, post-dispute agreement between the parties as to the

size of the overall debt and means of payment, plus the apportionment of

instalments as between past and current liabilities

c. As payment has been agreed, the tribunal lacks jurisdiction to determine

the reasonableness and payability of the service charges concerned : see

section 27A(4)

d. The tribunal therefore declines to order the repayment to the applicant of

any amount levied in the period in question by way of service charge

e. As the tribunal lacks jurisdiction to make any determination under section

27A then the peripheral applications concerning costs, under section 20C

and/or under rule 13 of the Tribunal Procedure (First-tier Tribunal)

(Property Chamber) Rules 2013, must also fall away.

5. Whether the [NAME] may impose a condition not mentioned in the

lease as a condition precedent to the grant of a certificate permitting assignment,

the answer to which seems rather straightforward, is not a matter falling within

the jurisdiction of this tribunal and therefore on that ground it must decline to

make the declaration sought.

Relevant provisions in the lease

6. The applicant’s lease dated 30th August 2002 is tripartite, with [RESPONDENT] identified as “the Company” ([NAME]/landlord), [RESPONDENT] Management [COMPANY] as “the Management Company”, and [NAME]

as “the [NAME]” ([NAME]). The premises were demised for a term of 999 years

at an annual rent of £150, and by clause 2.14 the service charge is defined as :

8% of the expenses incurred during the financial year in question as set out in

Part II of the Seventh Schedule plus in each case such sums as the Management

Company shall in its absolute discretion determine for use as a sinking fund

against anticipated future expenditure...

7. By clause 2.1 the [NAME] covenants with the Company to observe and perform

the covenants and obligations set out in the Sixth Schedule, and by clause 3 with

the Company and separately with the Management Company to observe and

perform those set out in the Seventh Schedule. By clause 4 the Company grants

rights of entry to the Management Company and it reciprocates by covenanting

to observe and perform the obligations in the Eighth Schedule. By clause 6 the

Management Company covenants with the [NAME] to observe and perform the

covenants and obligations in the Ninth Schedule.

8. The Management Company has since acquired the freehold from the Company,

thus simplifying the parties’ respective obligations.

9. On the issue of service charges paragraphs 2.2 and 2.3 of Part I of the Seventh

Schedule provide the mechanism for payment : first, to pay on 25th March what

the Management Company regards as a fair and reasonable interim payment on

account of the service charge for that financial year; and secondly upon receipt

of the accountant’s certificate (as defined in paragraph 13 of the Eighth Schedule)

forthwith to pay to the Management Company the balance (if any) after allowing

for the payment on account.

10. Much stress was placed by the applicant on the Management Company’s failure

to comply with this certification process, so it is useful at this point to set out in

full paragraphs 12 to 14 of the Eighth Schedule :

12. The Management Company shall comply with the provisions of the Companies

Act and keep proper books of account of all costs and expenses incurred by it in

carrying out its obligations hereunder and an account shall be taken as soon as

practicable on or after the end of each financial year during the term of the

amount of those costs and expenses incurred since the commencement of this

demise or the date of the last preceding account as the case may be after

deducting interest (if any) received on cash in hand (less any appropriate

provision for tax on that interest)

13. The account taken in pursuance of the last preceding paragraph shall be

prepared and audited by a [NAME] who shall issue a certificate

(“the Accountant’s Certificate”) of the total amount of the said costs and

expenses (including the audit of the accountant) for the period to which

the account relates and the Service Charge due from the [NAME] to the

Management Company pursuant to clause 2 of Part I of the Seventh Schedule

hereof [emphasis added]

14. The Management Company shall within two months of the date of the date to

which the account provided for in paragraph 14 of this Schedule is taken serve

on the [NAME] a notice in writing stating the total and the Service Charge

specified by and certified in accordance with the last preceding paragraph

11. On the non-service charge point raised by the applicant he relies upon paragraph

3 of Part I of the Seventh Schedule, viz :

Not to assign or transfer the demised premises except by way of assignment or

transfer of the whole of the residue of the term to an [NAME] or transferee who

the [NAME] shall procure shall prior to the proposed assignment or transfer

:–

3.1 Apply in writing for membership of the Management Company

3.2 By a separate Deed prepared at the cost of the [NAME] or transferee enter into

a direct covenant with the Company and the Management Company and each of

them substantially in the form set out in the Eleventh Schedule to observe and

perform the covenants on the part of the [NAME] contained in this present

lease whilst the lease is vested in him and such Deed shall contain a further

covenant not to assign or sub-let or part with possession of part only of the

demised premises and not to assign or transfer or sublet the whole of the

demised premises except as hereinbefore provided without procuring that the

proposed [NAME] transferee or sub-[NAME] enters into a direct covenant with the

Company and the Management Company substantially in the form set out in the

Eleventh Schedule.

Material statutory provisions

12. Section 18 of the Landlord and Tenant Act 1985 defines the expression “service

charge,” for the tribunal’s purposes, as :

an amount payable by a tenant of a dwelling as part of or in addition to the

rent... (a) which is payable, directly or indirectly, for services, repairs,

maintenance, improvements or insurance or the landlord’s costs of

management...

13. The overall amount payable as a service charge continues to be governed by

section 19, which limits relevant costs :

a. only to the extent that they are reasonably incurred, and

b. where they are incurred on the provision of services or the carrying out of

works, only if the services or works are of a reasonable standard.

14. The tribunal’s powers to determine whether an amount by way of service charges

is payable and, if so, by whom, to whom, how much, when and the manner of

payment are set out in section 27A of the Landlord and Tenant Act 1985. The

first step in finding answers to these questions is for the tribunal to consider the

exact wording of the relevant provisions in the lease. If the lease does not say

that the cost of an item may be recovered then usually the tribunal need go no

further. The statutory provisions in the 1985 Act, there to ameliorate the full

rigour of the lease, need not then come into play.

15. Sub-section (4), which is highly material in this case, provides that :

No application under section (1) or (3) may be made in respect of a matter

which –

(a) Has been agreed or admitted by the tenant...

16. Please also note sub-sections (5) & (6), which provide that a tenant is not to be

taken to have agreed or admitted any matter by reason only of having made any

payment, and that an agreement by the tenant of a dwelling (other than a

post-dispute arbitration agreement)1 is void in so far as it purports to provide for

a determination in a particular manner or on particular evidence of any question

which may be the subject of an application to the Tribunal under section 27A.

17. Insofar as relevant major works are concerned, ie those in respect of which the

contribution of any tenant liable to pay towards the service charge will exceed

£250, then section 20 provides that the relevant contributions of tenants are

limited to that amount unless the consultation requirements have been either

complied with in relation to the works or dispensed with by (or on appeal from)

the appropriate tribunal. The consultation requirements, in the instant case, are

those appearing in Part 2 of Schedule 4 to the Service Charges (Consultation

Requirements) (England) Regulations 20032 (as amended).

18. Two further provisions, concerning demands for payment of service charge, have

been put in issue or are relevant to this case. First, by section 47 of the Landlord

and Tenant Act 1987, where any written demand is given to a tenant of premises

for rent or other sums payable under the lease (which expression would include

a demand for payment of service charge), the demand must contain the name and

address of the landlord and, if that address is not in England and Wales, an

address in England and Wales at which notices (including notices in proceedings)

may be served on the landlord by the tenant. If the demand does not include

such information then any part of the amount demanded which consists of a

service charge or an administration charge (“the relevant amount”) shall be

treated for all purposes as not being due from the tenant to the landlord at any

time before that information is furnished by the landlord by notice given to the

tenant.

19. Secondly, since 1st October 2007 section 21B of the 1985 Act provides that a

1 Eg. provisions in a lease stating that the landlord’s accountant’s certificate shall be conclusive, or

that any dispute shall be referred to arbitration

2 SI 2003/1987

demand for the payment of a service charge must be accompanied by a summary

of the rights and obligations of tenants of dwellings in relation to service charges.

The content of that summary is prescribed by the Service Charges (Summary of

Rights and Obligations, and Transitional Provision) (England) Regulations

2007.3 The document must contain the prescribed heading and text and must be

legible in a typewritten or printed form of at least 10 point.4

The hearing

20. At a hearing well attended by a large number of [NAME] the applicant appeared

in [APPELLANT] and [NAME], managing agent and company secretary, acted for

the [NAME] and management company. The tribunal had before

it a bundle comprising 576 pages to which, during the hearing, the respondent

added a 16-page “Statement of Case” – effectively submissions on points relevant

and irrelevant/outwith the tribunal’s jurisdiction. Neither party had submitted

a detailed witness statement, save that the respondent had included a number of

letters (one [472–475] signed by 15 [NAME]), including one from [NAME], an accountant at [NAME] [465]. He gave oral evidence on the

issue of audits and certification of accounts and left with a tribunal a copy of

ICAEW Technical Release Tech 03/11, providing guidance on accounting and

reporting in relation to service charge accounts for residential properties on

which variable service charges are paid in accordance with a lease or tenancy

agreement.

21. In purported compliance with tribunal directions a schedule had been prepared

listing issues in dispute [387–389]. All fourteen of them concerned a procedural

point. No issue was raised by the applicant concerning the cost or quality of

management, or of any major works undertaken, so that apart from Mr

[NAME] evidence, the case largely proceeded on the basis of argument about

law, procedure, and whether any concluded agreement on liability was reached

in correspondence between the parties.

22. The points listed on Mr [NAME] schedule of disputed charges are set out in the

Schedule annexed to this Decision.

23. Mr [NAME], who confirmed that he was legally qualified, in his statement of case and

his opening remarks to the tribunal, quoted passages from [APPELLANT] on [NAME] and from extensive case law to justify his non-liability for payment, and

why he should be reimbursed for all the service charges that he had, erroneously,

paid in past years.

24. On the length of time during which he had paid without objection, and its effect

in law, the tribunal referred Mr [NAME] at the outset to [NAME] v [NAME], to which he countered with [NAME] v [COMPANY], at para [25].6 The point of that decision, he argued, was

3 SI 2007/1257

4 Op cit, reg 3

5 [2009] UKUT 241 (LC)

6 [2016] UKUT 527 (LC)

that the rights afforded by statute would require a very high bar to overcome and

remove them. In [NAME] the tenants had been there 11 years, and attended all

meetings, agreeing unanimously to all decisions at meetings. According to HHJ

Huskinson this was still not enough to waive their rights under s.27A(5).

25. In this case he was not aware of all facts, there was a time when he was away, and

only recently had he turned his mind to numerous breaches of both the lease and

statute. It does not make it right, and it is wrong for the landlord to benefit from

its breach.

26. He took the tribunal through the various years’ service charge accounts. The

most recent had been audited, but most were not. The 2016 account, at [165],

even included a note from the accountants drawing attention to para 13 of the 8th

Schedule, stating that the fact that the accounts had not been audited was

therefore a breach, and that this would be raised at the next AGM. Many sets of

accounts had also been signed by or on behalf of the managing agents; not by the

management company itself.

27. Mr [NAME] referred to the case of [NAME] v [NAME] and

to [NAME] in his application. It was patently clear that the landlord had not

satisfied the requirements of the lease and, following the leading judgment of

Lord [NAME] in Arnold v Britton8, the importance of the language used in the

document must not be diminished by placing reliance on commercial common

sense, and there is also no special principle of interpretation that service charge

clauses are to be construed restrictively.

28. Mr [NAME] also observed that no estimated demands were raised. They were all final

demands. Reference was made to the demand letter at [107], dated March 2009

and addressed “To All Members”, seeking payment of the 2009-10 service charge.

It was signed by [COMPANY] for the management company, stated that

payment could be made by cash or cheque at their offices, and that cheques be

made payable to [RESPONDENT]. It was put to him that this was

clearly a demand for an advance payment, but that – given the flexibility granted

to the management company when fixing the amount to be applied to reserves

for future expenses – the amount levied annually remained constant for years.

29. On the issue whether service charge demands issued were accompanied by the

prescribed summary of tenant’s rights and obligations Mr [APPELLANT] conceded that he

had filed no evidence to the effect that no such summaries had been received by

him. He merely stood by his application and statement of case. Mr [NAME],

who apart from a few years was the appointed managing agent for the property,

assured the hearing that such summaries had accompanied all demands, and his

assistant – who would have arranged this – was by his side.

30. On the question of reasonableness Mr [NAME] referred to the Upper Tribunal decision

in [COMPANY] v [NAME], where the tribunal said

7 [2011] UKUT 255 (LC)

8 [2015] UKSC 36; [2015] AC 1619

9 [2018] UKUT 252

that the absence of proper certification may be relevant to reasonableness but,

citing comments by the Deputy President, Martin Rodger QC, in [COMPANY] v Ridgway,10 that :

It may well be the case that, ordinarily, non-compliance with a certification

regime will not prevent a landlord from recovering service charges payable on

account... but, if so, that is because payments on account are likely to be set by

reference to an estimate of future expenditure, rather than by the definitive

certification of past expenditure. Even on account charges may require

certification before they become payable... In every case the function and

significance of the certificate will depend on the terms of the agreement.

31. In this case, of course, no challenge was made by Mr [NAME] to the cost, quality or

reasonableness of any specific item.

32. On his point that the demands did not comply with section 47 of the Landlord

and Tenant Act 1987 by giving the name and address of the landlord the tribunal

directed his attention to the letter at [107] asking for payment to be made to

[RESPONDENT] (which was also the landlord), but also to the

case of [RESPONDENT] v North11 which confirmed that the

“demand” to which section 47 applies is defined in section 47(4) as a demand for

rent or other sums “payable to the landlord”; the definition of “landlord” in

section 60(1) is not extended to include any [APPELLANT] with the right to enforce

payment of a service charge.

33. Thus far a number of procedural issues had been identified by the applicant, and

they did not inspire confidence. Another, noted by the tribunal, was some bold

advice to [NAME] (and members of the [COMPANY]) in a letter dated 18th

March 2019 [67–70] that where [NAME] were also members of the management

or freehold company consultation it is not sensible to go down the formal route

of compliance with section 20 of the 1985 Act, as it would only add unnecessarily

to the cost.

34. However, it was now the respondent’s turn to address the tribunal and direct its

attention to an exchange of emails beginning on 13th March 2018 and leading, it

was said, to an agreement by Mr [NAME] to pay a fixed sum by way of arrears and his

current obligation by instalments. In reverse order, this exchange appears at

[447-450]. It starts with an email to Mr [NAME] which followed a discussion in which

he wanted to make a proposal for payment of his arrears. Figures were

mentioned, followed by a reply from Mr [NAME] in which he referred to setting up a

payment of £500 per month. He went on :

This £500 a month is to cover the agreed outstanding debt as per my proposal

that you have outlined below and all future service charge payments.

I believe the 50% reduction of the disputed debt is a fair result all round.

[emphasis added]

10 [2018] UKUT 32 (LC), at [77]

11 [2015] UKUT 91 (LC); [2015] L&TR 30

35. Mr [NAME] replied on 27th March 2018, ending with the comment :

Finally, are you happy that this exchange of emails is sufficient for this to be a

legally binding agreement, or do you think we need to draft a formal document

for both parties to sign?

36. The critical reply from Mr [NAME] to [NAME], dated 9th April 2018, reads :

Hi [NAME] you are well. Thank you for your email.

I have 2 standing orders set up per calendar month as follows :

1 for £185.82 representing the current financial year. This is set up for the 1st of

each month. The first payment left on 1 April.

1 for £314.18 to go towards the agreed balance outstanding from previous

years. This is set for the 26th of each month. The first will be on 26 April.

I wanted to keep the two separate so I could more readily keep track of things,

and also to coincide with my payroll.

The total to be paid per calendar month remains the same - £500.

[emphasis added]

37. In his closing submissions Mr [NAME] sought to distinguish between an agreement on

liability and a mere mechanism for payment.

38. On the obligation in the lease to produce audited service charge accounts the

respondent called [NAME]. He agreed that the accounts

should comply with the lease, and it was put to him by Mr [NAME] that it should

contain two things : first the total amount of costs; and secondly, the service

charge due from the [NAME] to the management company. He replied that

there is a technical release from the ICAEW, RICS, etc and this provides agreed

guidance concerning the stipulation of precise apportionments.

39. When directed to the terms of Schedule 8, he referred to a passage on page 3 to

the effect that accounting for service charges and auditing are substantially the

same, and to paragraphs 3.1.1 & 2 on page 7. He said that he thought this lease

has been part of a pro forma used for many years, and directed the tribunal to the

procedures at page 18 for audit of service charge accounts. By contrast, audits for

large companies take weeks, and the requirements are fifty times more than this.

There was, he suggested, not a huge difference between Appendix E and F. They

were almost identical in terms of the work to be carried out.

40. In his closing submissions Mr [NAME] referred the tribunal to the First-tier Tribunal’s

decision in [COMPANY] v [NAME], where failure to comply with the

procedures specified in the lease led to an order for repayment of a substantial

sum to the tenant, and to section 27A(5) and the fact that payment does not

constitute an admission of liability.

Discussion and findings

41. For very many years Mr [NAME] paid his service charges, sometimes when demanded

and sometimes late, or only partially. The tribunal directed his attention to the

Upper Tribunal’s decision in [NAME] v [COMPANY], where

12 LON/00BD/LSC/2018/0442

HHJ Huskinson said, at [44] :

As regards the years 1997 to 2004 inclusive I accept Mr [APPELLANT] argument that

the Appellant is not entitled to make an application under section 27A in respect

of these payments. I find that he has agreed or admitted these sums and that

section 27A(4) prevents his application in respect of these years. As regards

section 27A(5) this provides that the Appellant is not to be taken to have agreed

or admitted any matter by reason only of having made any payment. However,

the Appellant has done substantially more than merely make payments in

respect of these years. He has not only made the payments but has waited a long

time (namely until the 2007 application) before seeking to challenge them, and

has in the meantime made a separate application to an LVT raising various

matters regarding services charges but not raising any matter as regards these

insurance premiums. The 2005 proceedings were then withdrawn without the

insurance premiums ever being raised as an issue. The combination of these

repeated payments, without any complaint or reservation, coupled with the lapse

of time and with the express challenging in formal 2005 proceedings of certain

matters (but not these insurance matters) leads me to conclude that the

Appellant must be taken to have agreed or admitted these premiums.

42. [NAME] was approved and followed by HHJ Gerald in [NAME] v [NAME] LBC13, at

[25] :

The question is whether there are any facts and circumstances from which the

[NAME] could properly have found that the appellant had agreed or admitted the

service charge items in respect of the 2001/02 to 2006/07 period he now seeks

to challenge. In my judgment, the [NAME] was entitled to so find based purely upon

the series of payment in respect of the demanded service charge throughout this

six year period, and subsequently, without reservation, qualification or other

challenge or protest. That of itself is sufficient. This is, however, reinforced by

the sheer length of time which has elapsed before challenge was first

made—between eight years in respect of the 2006/07 service charge and 12 years

for the 2001/02 service charge. Whilst distinctions can be made between the

nature of the different service charge items being challenged, the [NAME] is entitled

to look at matters in the round and find that where there has been substantial

delay in making any challenges to the items now in dispute, and most if not all

of which have long-since been paid, that the tenant has agreed or admitted the

amounts claimed which, after all, have long-since lain dormant without

challenge.

43. By contrast, in [NAME] v Merchant Exchange Management Co Ltd14 only one

year’s service charge was in dispute, and it was unclear to the judge exactly what

documents in what form were received when by the appellants in that case in

relation to any allegedly relevant service charge.

44. In this tribunal’s determination the payment of service charges by Mr [NAME] without

complaint over many years means that, insofar as those amounts are concerned,

he has agreed them and section 27A(4) prevents the tribunal from re-opening the

matter.

13 [2015] UKUT 542 (LC); [2016] L&TR 13

14 [2016] UKUT 527 (LC)

45. As for more recent events, the tribunal regards Mr [NAME] attempt to argue that what

he had agreed in 2018 was only a mechanism for payment, while leaving the

question of liability to pay unresolved, is entirely lacking in merit. By agreeing a

reduction of 50% in historic arrears and setting up arrangements for paying both

those arrears and his current liabilities he was reaching a binding agreement

concerning the remaining service charge periods that he seeks to challenge in this

application. Section 27A(4) prevents him from applying to the tribunal to make

any such determination.

46. While some of the procedural matters raised should encourage the respondent

to adopt a less casual approach in future, the agreement by the applicant to pay

the sums that he now seeks to challenge means that this application must be

dismissed.

47. The consequential orders sought for repayment, under section 20C, and for costs

are also dismissed.

48. The applicant’s request that the tribunal make a declaration concerning the

respondent’s ability to impose conditions upon the grant of a certificate entitling

an assignment to a prospective [NAME] who complies with the lease terms is not,

however, a matter within this tribunal’s jurisdiction.

Dated 24th January 2020

[NAME]

First-tier Tribunal Judge

APPLICANT’S SCHEDULE OF DISPUTED SERVICE CHARGES

1. No audited accounts for service charge years 1 April 2007 – 31 March 2019

prepared by a [NAME] as required under the lease (failure to comply

with machinery in the lease). Audited accounts are a pre-condition in being able

to determine service charge amounts (see para 13 of the 8th Schedule, and Part 1

of the 7th Schedule to the lease)

2. No accountant's certificate issued to the applicant by a [NAME] for

any service charge years 1 April 2007 – 31 March 2019 in accordance with the

lease (failure to comply with the machinery in the lease). The accountant’s

certificate is a pre-condition in being able to determine service charge payability

(see para 13 of the 8th Schedule, and Part 1 of the 7th Schedule to the lease)

3. No management company notice issued to the applicant for any service charge

years 1 April 2007 – 31 March 2019 as required by para 14 of the 8th Schedule to

the lease (failure to comply with the machinery of the lease necessary to

determine service charge payability)

4. No service charge demands provided by the respondent for service charge years

1 April 2015 – 31 March 2019 as required under Part 1 of the Directions

5. No evidence of accompanying statement of tenant's rights and obligations issued

with the "demand" (statutory failure – s.21B Landlord and Tenant Act 1985)

6. No evidence the consultation was followed (statutory failure – s.20–20ZA

Landlord and Tenant Act 1985)

7. Failure to provide full name and contact details of the landlord on the face of any

"demand" in accordance with statute (statutory failure). See s. 47 LTA 1987

8. No name of the leaseholder on the "demand" in accordance with the lease or

statute. NB the leaseholder is Mr [NAME]. [NAME] only. See clause 10 of the lease

9. No address of the leaseholder on the "demand" in accordance with the lease or

statute. The purported demand is a generic description all members of the

management company. See clause 10 of the lease

10. Purported "demand" is not in accordance with other lease provisions e.g. failure

to state whether payment is due in advance or arrears or interim (failure to

comply with machinery in the lease).

11. No address provided for the leaseholder to serve notices or complaints to

(statutory failure)

12. The landlord has so far failed to provide invoices to substantiate the entire

amount demanded through the service charge demands issued (statutory failure)

nor allowed the applicant to inspect (statutory failure – s.22 Landlord and

Tenant Act 1985, thereby also committing a criminal offence under s.25)

13. As a result of the respondent's failure apply with the requirements contained in

both the lease and statute, it is impossible to determine whether any costs

incurred are in fact reasonable in accordance with s.19 of the Landlord and

Tenant Act 1985. The applicant is clearly unable to consider the reasonableness

of quantum without the full machinery of the lease having first been complied

with by the respondent

14 . The applicant is therefore not prepared to make any payment respect of service

charge years 1 April 2007 – 31 March 2019 and requires immediate repayment

from the respondent sums already paid to the respondent