Solicitor threatens PRISON over S20

masterjoiner

1/2

Hello there, I have read many threads on this forum and received great advice.  I finally joined because I have received a really worrying, threatening email from a Solicitor.  I will try to keep this as vague as possible, to protect the identity of those involved.

I am the freeholder of a block with 4 properties.  I also live in the block.  Major works are now required to the 150 year old building, so I served Section 20 Consultation Notices.  Three of the leaseholders, who also live here, can see the need for major works and have absolutely no objection.  It is just the one leaseholder, who does not live here,  who rents out his property for a substantial sum -  he is the only leaseholder who strongly objects to the work.

To provide some context, I hand delivered each S20 Notice and then sent each Notice via first class Royal Mail, which is what is required.  I then sent an email to each leaseholder attaching said Notice and letting them know that I have already hand delivered the Notice and sent the Notice via first class post.   Each Notice clearly provided my home address for any responses.

Some four days after the Stage 1 consultation period ended, I received a letter via post from the leaseholder's Solicitor.   The letter was even date stamped after the end of the consultation period. As an act of goodwill and to prove that I was being transparent, I included the Solicitor's queries and my responses during Stage 2 of the consultation, despite me receiving their response well outside the consultation period.

Stage 2 of the consultation ended, and as I received no responses, the next day, I hand delivered Stage 3 (the final Notice), stating that no responses were received during the consultation period for Stage 2 and letting them know which contractor was chosen to carry out the works.  As a side note, it is my understanding that  I didn't even have to serve Stage 3, as no responses were received and I went with the contractor who provided the lowest quotation.  However, again, in order to be transparent and to let my fellow leaseholders know who I chose to carry out the works, I served the Stage 3 Notice.

This morning, I received a truly menacing and troubling email from the leaseholder's Solicitor, stating that they did respond during the consultation period, via email.  I checked my Spam folder and found that the Solicitor sent an email on the last day of the consultation period at 5:00pm.  Clearly, I never received it, as it was sent to my Spam folder and furthermore, in all the consultation Notices, I put my home address for where they needed to send responses, not an email address.

masterjoiner

2/2

This is the email from the leaseholder's Solicitor:

We write further to your email of yesterday and your purported Notice of Awarding the Contract, which clearly contains untrue Statements that no communications were received as to the estimates.

For the avoidance of any doubt, our client submitted questions and clarifications before the deadline on XX/XX/2023 by email, which you have again chosen to completely ignore.

Your conduct throughout this process, on which we will rely, has been unreasonable.

Your signed Statement, contains therefore false statements, which we will be referring to the Property Tribunal and/or Court in due course, whereby we will be seeking not only indemnity costs against both (Mr & Mrs XXXXXXXXX), but also, given the false statements made, submissions on contempt of Court, which can have serious consequences including but not limited to a prison sentence.

I am absolutely fuming and terrified at the same time!

The statement I sent that I did not receive any responses during the Stage 2 Consultation period, is true.  I did not receive any statements by the end of the consultation period and it was only upon receiving the Solicitor's email today, did I realise they had sent a prior email, 5:00pm on the last day of consultation, and even then it was in my Spam folder, not to my home address.  As my forum name suggests, I am a joiner by trade and I do not live on my phone or my computer, checking emails all day and I very rarely, if ever, look at my Spam folder.

Why is it my fault that this Solicitor is choosing to provide a response after the consultation period has ended (Stage 1, four days later) or at the very last minute (Stage 2, via email at 5:00pm on the last day of consultation) and is depending upon me to check my Spam folder, when in each Consultation Notice, it gave my home address as the address to receive responses?

How am I being unreasonable, when I provided a response to the queries the Solicitor raised OUTSIDE the Stage 1 consultation period?

I am not scared of presenting my case in front of a County Court or at a Leaseholder's Tribunal because I can prove that I served the Notices correctly and I have done nothing wrong but I am scared of me and my wife facing a prison sentence!

Any assistance would be much appreciated, thank you.

powergen_insider

Standard bullish solicitor wording.  You won't be going to jail.

theartfullodger

masterjoiner said:

.................

The statement I sent that I did not receive any responses during the Stage 2 Consultation period, is true.  I did not receive any statements by the end of the consultation period and it was only upon receiving the Solicitor's email today, did I realise they had sent a prior email, 5:00pm on the last day of consultation, and even then it was in my Spam folder, not to my home address.  As my forum name suggests, I am a joiner by trade and I do not live on my phone or my computer, checking emails all day and I very rarely, if ever, look at my Spam folder.

.......................

It's your choice to look at your spam folder or not ( same as with me).  You were clearly sent the email. 

Sounds tricky nasty situation. Strongly suggest you engage a solicitor who specialises in s20 situations.  It will cost: "low price" is not always the cheapest in the long run.

Good luck..

pinkshoes

Did the consultation letter specifically state that all queries were to be sent in the post to your address and not via email?

Otherwise an email would be acceptable, particularly as you also used email to contact them with the S20 notice.

It's entirely up to you to check your junk folder regularly. I check mine every couple of days.

So it would appear you DID receive a response within the time limit so you now need to take this response into consideration. What did the email say in response to the stage 2 quotes? Would their response have changed anything?

If you'd specified postal responses, then I'd write back saying just to clarify, you received no POSTAL responses, but having checked your junk mail, you see they actually sent a response via email which you hadn't noticed due to requesting responses via post, so you will now take this into consideration. 

eddddy

Depending on how you want to handle it, perhaps one approach is to write back to the solicitor (labeling your reply as "Without Prejudice") with something like:

I note that your client is unhappy with the section 20 consultation process. Could you confirm whether your client would like the consultation carried out again? Obviously, that might result in...

• A delay in getting the work done

• An increase in costs, due to general inflation in building costs

If your client decides to agree to the the current quote received from [abc builders], I will require their agreement to the payment of their contribution in writing, and payment of their contribution in advance.

I note that your client is taking professional legal advice on this matter. Therefore, if your client does not provide their written agreement to payment, I think it will be prudent and reasonable for me to take professional legal advice as well.

The reasonable cost of that legal advice will be taken from service charge funds, resulting in a higher service charge for your client.

I'd strongly suggest that it's really, really important that before starting the work, either...

• You have the leaseholder's agreement in writing to paying their contribution, or

• You go to tribunal to get a ruling that the service charge for the work is reasonable and payable by the leaseholder

If they agree to paying their contribution, they cannot later challenge it at tribunal.

If they pay without saying anything - the law specifically says that is not 'agreeing to pay'. They can still challenge it at tribunal.

If they pay "under protest" - that is definitely not 'agreeing to pay'. So they can challenge it at tribunal.


That approach removes any risk of the leaseholder taking you to tribunal and winning on a technicality, for example.

JM68

Don't worry about the contempt of court threat, it really is not an issue and is being used as a scare tactic.  If it went to the Tribunal later, and you deliberately lied on a statement of truth on a document you subsequently filed in court proceedings, then you would have a problem.  But that's not the case here.

What is far more important is that you follow the correct process.  It may be you already have (e.g. if the response should have been sent by post to your service address).  Or it may be that you need to pause the works and re-serve the stage 3 notices, including giving 'due regard' to their stage 2 objections in the meantime (which could just mean not accepting them and explaining why).

The only real risk to you is that, if you do not get the process right, it may be a Tribunal later agrees this leaseholder may not be liable for part or even all of their share of the costs of the works, and you as freeholder would have to pay any shortfall.

If that potential sum is therefore quite large it may well be worth getting a solicitor to advise you on process and, possibly, write a letter their solicitor.  Should be able to get that for hundreds not thousands of pounds.  You would not necessarily need more than that i.e. you don't need to use a solicitor if it ends up going to a tribunal.

As long as you get the process right and the costs of the works are justified and not excessive it is very unlikely to go to a Tribunal (NB though it's not uncommon for a party to issue a claim to the Tribunal to dispute s20 costs but withdraw before the actual hearing).

masterjoiner

pinkshoes said:

Did the consultation letter specifically state that all queries were to be sent in the post to your address and not via email? 

Otherwise an email would be acceptable, particularly as you also used email to contact them with the S20 notice.

It's entirely up to you to check your junk folder regularly. I check mine every couple of days.

So it would appear you DID receive a response within the time limit so you now need to take this response into consideration. What did the email say in response to the stage 2 quotes? Would their response have changed anything?

If you'd specified postal responses, then I'd write back saying just to clarify, you received no POSTAL responses, but having checked your junk mail, you see they actually sent a response via email which you hadn't noticed due to requesting responses via post, so you will now take this into consideration. 

Hello @pinkshoes
S20 Consultation Notice said please send responses to...... And I provided my home address.
I only sent the Notices via email as well, to confirm that I had already hand delivered the Notices and sent via postal delivery.

Their response asks for exact measurements but I already provided the Site Plan from the Land Registry to confirm the areas. They asked me who is paying liability insurance and they asked me to prove that my renovation works did not cause the problem in the first place (untrue)  which is why major works are required on a 155 year old building. 

masterjoiner

eddddy said:

Depending on how you want to handle it, perhaps one approach is to write back to the solicitor (labeling your reply as "Without Prejudice") with something like:

I note that your client is unhappy with the section 20 consultation process. Could you confirm whether your client would like the consultation carried out again? Obviously, that might result in...

• A delay in getting the work done

• An increase in costs, due to general inflation in building costs

If your client decides to agree to the the current quote received from [abc builders], I will require their agreement to the payment of their contribution in writing, and payment of their contribution in advance.

I note that your client is taking professional legal advice on this matter. Therefore, if your client does not provide their written agreement to payment, I think it will be prudent and reasonable for me to take professional legal advice as well.

The reasonable cost of that legal advice will be taken from service charge funds, resulting in a higher service charge for your client.

I'd strongly suggest that it's really, really important that before starting the work, either...

• You have the leaseholder's agreement in writing to paying their contribution, or

• You go to tribunal to get a ruling that the service charge for the work is reasonable and payable by the leaseholder

If they agree to paying their contribution, they cannot later challenge it at tribunal.

If they pay without saying anything - the law specifically says that is not 'agreeing to pay'. They can still challenge it at tribunal.

If they pay "under protest" - that is definitely not 'agreeing to pay'. So they can challenge it at tribunal.


That approach removes any risk of the leaseholder taking you to tribunal and winning on a technicality, for example.

Thanks very much for taking the time to provide such a thorough response. 

My head is all over the place at the moment but I'll have a think, thank you. 

masterjoiner

JM68 said:

Don't worry about the contempt of court threat, it really is not an issue and is being used as a scare tactic.  If it went to the Tribunal later, and you deliberately lied on a statement of truth on a document you subsequently filed in court proceedings, then you would have a problem.  But that's not the case here.

What is far more important is that you follow the correct process.  It may be you already have (e.g. if the response should have been sent by post to your service address).  Or it may be that you need to pause the works and re-serve the stage 3 notices, including giving 'due regard' to their stage 2 objections in the meantime (which could just mean not accepting them and explaining why).

The only real risk to you is that, if you do not get the process right, it may be a Tribunal later agrees this leaseholder may not be liable for part or even all of their share of the costs of the works, and you as freeholder would have to pay any shortfall.

If that potential sum is therefore quite large it may well be worth getting a solicitor to advise you on process and, possibly, write a letter their solicitor.  Should be able to get that for hundreds not thousands of pounds.  You would not necessarily need more than that i.e. you don't need to use a solicitor if it ends up going to a tribunal.

As long as you get the process right and the costs of the works are justified and not excessive it is very unlikely to go to a Tribunal (NB though it's not uncommon for a party to issue a claim to the Tribunal to dispute s20 costs but withdraw before the actual hearing).

Thanks for your response. The works are calculated around £3,000 per leaseholder. Three of the leaseholders agree the major works needs doing and the one leaseholder who doesn't live here, is the one who paid a Solicitor.

I have already carried out major works to improve the building and did not charge the leaseholders and they are aware of this. 

I have chosen the contractor who provided the lowest quote. What else does that one leaseholder want? 

This is the first time I carried out S20 Consultation and I painstakingly served each Notice correctly. If I am taken to a County Court or a Tribunal and I lose, even though the works are very much required and are reasonable/fair, I will say balls to all of them and I won't do any work. There is no chance I am getting major works done and paying for it myself, when it benefits all four leaseholders. 

martindow

Would a prudent course of action be to inform everyone that as there are some issuess over the responses received this S20 procedure will be started anew to ensure that all parties have been able to respond?  You could ask if they want to use their previous responses or ptoduce new ones and get confirmation from the contractors of their current tenders.  At the end of the time period for responses it would be prudent to wait a few days to be sure you have got everything back before going on to the next step.