parking and leasehold

Leo2023

The FTT website says they would deal with leasehold disputes, see here: https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber. Haven't seen a list or similar that would narrow in what matters within that the FTT deals with. If you are aware of any could you please post it here?

Thanks, also for your earlier comments.

eddddy

Leo2023 said:

The FTT website says they would deal with leasehold disputes, see here: https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber. Haven't seen a list or similar that would narrow in what matters within that the FTT deals with. If you are aware of any could you please post it here?

This is probably a good list to work from: https://www.gov.uk/government/collections/residential-property-first-tier-tribunal-forms

It lists all the forms you can use for making applications to the FTT. You probably want to concentrate on the section titled Leasehold Management.

You'll see:

• Form Leasehold 1: Apply to determine liability to pay an administration charge
• Form Leasehold 3: Apply to determine liability to pay, and reasonableness of, service charges

Those relate to my previous post.




In simple terms, an application can only be made to a tribunal if there is legislation that specifically says it can. For example:

Landlord and Tenant Act 1985

27A  Liability to pay service charges: jurisdiction
(1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable...

Link: https://www.legislation.gov.uk/ukpga/1985/70

      

Commonhold and Leasehold Reform Act 2002

Liability to pay administration charges
5 (1) An application may be made to the appropriate tribunal for a determination whether an administration charge is payable....

Link: https://www.legislation.gov.uk/ukpga/2002/15/schedule/11

Again, in simple terms, landlord and tenant law would look at your complaint like this:

• It's none of your business if the freeholder chooses to hire a parking management contractor
• Just like it's none of your business if the freeholder chooses to hire a cleaning contractor to clean their offices
• And it's none of your business if the freeholder chooses to hire accountancy contractors to do their accounts

It only becomes your business if your freeholder demands unreasonable charges from you - resulting from hiring a parking management contractor, or cleaning contractor, or accountancy contractor.

That's the point at which you can potentially apply to the tribunal.

For the moment, from the law's point of view, your concerns about deliveries and taxis are hypothetical. No charges have been demanded in respect of deliveries or taxis. 


(There's a separate issue if the freeholder - or their agent - does something that restricts your rights as a leaseholder. For example, your lease gives you the right to park somewhere, but a gate or barrier is put up which prevents you from exercising your right to park. That's much tougher to deal with.)

Leo2023

Thanks Eddddy for your detailed response. 

To recap, my lease includes mutual covenants that say

a) No commercial vehicle (exceeding 15 cwt. unladen weight) shall be parked at any time on any parking space or any part of the estate except for temporary use of removal or delivery vans.

b) Not to permit any vehicle of any description belonging to the leaseholder, his family, servants, visitors or licensees to remain on the parking space or any part of the estate in such manner as to obstruct the ready approach to any part of the estate

There is no lease clause relating to fines or right/s to vary the lease.

It also includes a paragraph saying the leaseholder has to "comply with such reasonable regulations as the landlord and/or the head landlord may make from time to time relating to the putting out of refuse for removal and such other matters as may be considered necessary or desirable for the purpose of securing the safety orderliness or cleanliness of the building and/or the estate for the comfort and convenience of the tenants of the building and/or the estate or the efficient economical performance by the landlord and/or the head landlord of its obligations under this lease or under the head lease (as applicable)." Regulation/s is not defined in the lease. 
I don't think that this paragraph allows for regulations that conflict with other clauses, e.g. a) and b) above.

From that I conclude that I have the right to use the lower ground floor area temporarily for commercial deliveries/removal and for private access e.g. a house move or for visitors, and I cannot be fined for such access. I.e. the penalty parking scheme breaches the lease conditions. This reduces the value of my flat, including the resale value. I understand the legal term is tortious interference. 

The T&Cs of the parking company include a 15 min grace period for deliveries. I believe that is too short for any commercial delivery. Therefore, I am also looking to understand which period would be reasonable for temporary use under a) based on case law.

The managing agent also keeps the car gate in disrepair so that I cannot access the grounds and refuses to give me a fob to open the gate (have complained about that without success). I believe that this is also in breach of the mutual clauses. This has caused me great inconvenience re the delivery of a large, heavy piece of furniture in September.

I am considering the complaint to the FTT to get access to the grounds in line with the mutual clauses in my lease (without worrying about a fine and including a key/fob for the car gate). If the FTT cannot deal with the matter, which body or court could?

Thanks again

eddddy

Leo2023 said:

I am considering the complaint to the FTT to get access to the grounds in line with the mutual clauses in my lease (without worrying about a fine and including a key/fob for the car gate). If the FTT cannot deal with the matter, which body or court could?

So you're saying that the freeholder / management company is breaching the terms of your lease - in a way that doesn't involve payment from you.

Unfortunately, that's surprisingly difficult to deal with.  The law provides 3 main options.


1. Court Order
Go to court to get a court order (injunction) that requires the freeholder / management company to stop breaching your lease.

(If the freeholder / management company ignore a court order, that is contempt of court, and they could be fined or ultimately the responsible person could be sent to prison.)

But obtaining a court order (injunction) would cost thousands. The costs tend to make it out of reach of 'ordinary people'.



2. Apply to the FTT to have a manager appointed
The FTT can appoint a manager to take over management of your building.

To do this you have to prove 'serious fault' by the current freeholder / management company (i.e. prove they've done something seriously wrong) and give them the opportunity to put it right.

In simple terms your case might be "The car gate is broken and you haven't repaired it (plus other issues). Unless you repair the gate (and address the other issues), I'll ask the FTT to replace you with another manager."

See: https://www.lease-advice.org/advice-guide/what-does-appointing-a-manager-mean/



3. Apply to the FTT for the "Right to Manage"
In simple terms, if over 50% of leaseholders can club together, they can form a company and take over the management of the building. (So they could then arrange repairs of the gate, hire/fire parking management companies etc.)

This is 'no fault' option - you don't have to prove that the current freeholder / management company has done anything wrong.

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

Coupon-mad

Isn't there a free ADR for leaseholders (not Tribunal level). Seem to recall.

Leo2023

There is the PRS which can only look at service levels, lack of courtesy etc. The cannot help with the penalty parking scheme / breach of lease. They thought the FTT could help, but also said that they have no legal training. 

There is the Housing Ombudsman for complaints about landlords, that appears irrelevant for my issue.

Leo2023

Many thanks; your explanations are very helpful.

On 2) having a manager appointed: The landlord is a charitable registered society. The block I live in is standard leasehold, but another block on the premises is let for affordable rents.

On 3) 'Right to manage': disinterested leaseholders (e.g. letting flat/s) will make it very difficult to get the 50% support and it will also be difficult to find residents willing to take on the responsibility. E.G. having read the website, I am sceptical that being an officer is consistent with my job contract.

On alternatives:
Are there any ways to reduce the costs for the court order? Is it the court fee that's so expensive? Is self-representation not advisable?

What about alternatives such as writing to my MP or the department of housing and levelling up? Do you have any experience whether that's bound to be successful?

I would also be grateful for your views re a complaint to the housing ombudsman.

In the end, it cannot be true that charities can breach leases because recourse is too expensive?

Leo2023

Just to share that I have now complained to the Housing Ombudsman (HO), currently about not getting a second-stage response from the MA/landlord within the timelines set by the HO. I will post again here about the outcome.