Windows Demised to Leaseholders

Brightfox78

The managing agents are charging me for replacing other leaseholders windows, despite the lease categorically stating each window is demised and the responsibility of the leaseholder.

See attached their explanation, are they valid in the reasons they give for charging me for other leaseholders windows ?

Managing Agent's Explanation:-
 

Mark_d

If a leaseholder damages their windows so that they need replacing, that leaseholder has to pay for the replacement.  For routine maintenance/replacement of windows, the total cost is needs to spread over all leaseholders

BikingBud

Brightfox78 said:

The managing agents are charging me for replacing other leaseholders windows, despite the lease categorically stating each window is demised and the responsibility of the leaseholder.

See attached their explanation, are they valid in the reasons they give for charging me for other leaseholders windows ?

Managing Agent's Explanation:-
 

How are they dealing with the lintel repair work?

S20?

Are the window replacement works not just part of the large package of work? 

eddddy

As a note to others... the OP has posted other threads about this with more background:
https://forums.moneysavingexpert.com/discussion/6529533/section-20-repair-liability
https://forums.moneysavingexpert.com/discussion/6533164/section-20-liability-windows

(There's an argument for sticking to one thread - to minimise misunderstandings, and minimise the need to repeat information.)



In your position, I think I'd look at 2 options...

Option 1

Ask the managing agent to make an application to a tribunal... "For the determination of the liability to pay service charges under section 27A of the Landlord and Tenant Act 1985"... before they issue service charge bills, and before the work starts.

i.e. Ask the tribunal to decide whether you (as a leaseholder) should contribute to the cost of other people's windows.

The tribunal would...

• Read your arguments
• Read the managing agent's arguments
• Read the lease
• Read the legislation

... and decide who should pay what. The tribunal's decision will be binding, unless somebody appeals to a higher tribunal or court.


Option 2

If the managing agent refuses to apply to the tribunal, and issues you with a bill anyway...

then you should pay it under protest, and you can make an application to a tribunal... "For the determination of the liability to pay service charges under section 27A of the Landlord and Tenant Act 1985"

Again, The tribunal would...

• Read your arguments
• Read the managing agent's arguments
• Read the lease
• Read the legislation

... and decide who should pay what. Again, the tribunal's decision will be binding, unless somebody appeals to a higher tribunal or court.

If the tribunal decides in your favour, the managing agent will have to refund some of your money.

gm0

The best way to cost effectively do the project.  And the way the leaseholders pay for different things under different clauses.  May not be in alignment.  This doesn't make the project approach wrong to roll around the building and open up briefly.  Out and in. Lintel fix in the middle.  No mucking about with reglazing old and now (or already) failed units (from flexing the windows), dealing with dents/paint or other coating damage on extraction. Lots of labour. Not worth it.  New windows of type and size to suit new lintels and any cill changes.

It's best to get your protest focused tight on what you wish to avoid and stand a chance of winning on. 

Replacement of demised to others items and interior make good of same upon fitting.

Your argument is that this needs to be charged to only those units getting the "benefit" of new replacement demised items.  The counter argument is that the replacement is driven by the essential communal works only.  And so current sharing is correct. Other lessess may well take that view and protest an alternative charging basis where you pay less and they pay more.

Knowing someone will appeal suggests an incentive for the MA  to pick a fairly simple interpretation and go with it.  And let a viewed as inevitable tribunal override it with a slightly different one (or not) - which is then binding.

On the assumption that whichever route they pick - someone will try to change it to the other one.

They could have a meeting with you all to resolve something "fairer".  But anyone leaving that meeting unhappy can go to tribunal or pay under protest and do it later anyway. 

So it is arguably a fools errand having it other than to communicate what is happening a bit better and allow for some righteous complaining about how this is happening in the first place.

If you win your protest/tribunal on the correct to precedent legal interpretation for these leases and these works. 
Frame costs and demised make good for others so impacted may move to a 2nd pool of people being replaced. Communal costs replacing steels and scaffold etc likely remain with all.  Your bill goes down.  Other's bills go up based on the judgement for the window stuff.

This of course relies on *that* interpretation of the lease and recharge options for the two cost elements being legally stable.  One or the other has to be correct adding up to 100%.  Exclusive OR.  Two inconsistent tribnual decisions creating unbillable debt - would just drop into the current account/sinking as unbillable service charge.  And you would be told a story about depleted reserves and next year's service charge going up.  Not worth spending money on lawyers to pursue further (true).

Let's imagine they had chosen demised window costs are recharged only to those units actually getting new windows".  Going to tribunal anyway.  As someone would say - wrong - this is caused by a direct impact of mandatory communal structure works.  I don't need or want new windows.  So it is part of the project. So it is to be shared by all.  That's my interpretation of the lease+project. So I am off to tribunal.

The MA has a fairly strong incentive not to change their story ahead of tribunal once a position has been struck.

One certainty will be that if you spend a year or more arguing with different protests and tribunal activity pre-works.  When the project happens later.  It will cost more. 

Sounds like off to tribunal you go......if they do the project (because it is urgent due to risk) then paying under protest route (formal letters) and tribunal thereafter.

Good luck.

Brightfox78

Thanks to all the respondents on this thread, for taking the time to write your arguments and give your expert opinion. It is very much appreciated.

This kind of lintel/window situation must have happened before and there must be a historical tribunal case or outcome, that can be reviewed. Might see if I can find any archived cases similar to this. Perhaps on the tribunal website maybe. If I challenge, the MA at tribunal, then at least I know, I am on firm ground if there is a similar historical case.

In conclusion, I think I will pay under protest for a quiet life and then pursue MA at a later point. Paying & not holding up the project might even be seen as favorable at tribunal.

eddddy

Brightfox78 said:

In conclusion, I think I will pay under protest for a quiet life and then pursue MA at a later point. Paying & not holding up the project might even be seen as favorable at tribunal.

So you're essentially saying you'd follow option 2 (as mentioned in my post above).

Tbh, I think a prudent Managing Agent would choose option 1.

• With option 1, the Managing Agent won't care what the outcome is - so they might not fight you very hard

• With option 2, the Managing Agent could lose a lot of money if you win - so they might fight you very hard

It's because I think you've missed a key point. The windows belong to the leaseholders. In general, the Managing Agent has no right to replace the windows, and so no right to force the leaseholders to pay the Managing Agent for replacing them.

So if the tribunal agrees with you and says to the managing agent....

• "You shouldn't have replaced the leaseholders' windows"

• "You should have told the leaseholders to arrange their own window replacement, and told the leaseholders to pay for the replacement themselves"

Then the Managing Agent (probably) has no way of forcing the leaseholders to repay the window replacement costs - so the Managing Agent ends up losing their money.