Tingdene Holiday Parks Ltd v Cox and others [2011] UKUT 310 (LC)
By s.21B, Landlord and Tenant Act 1985, a demand for the payment of service charges must be “accompanied” by a summary of rights and obligations of tenants in relation to the same. The form of that summary is prescribed by the Service Charges (Summary of Rights and Obligations, and Transitional Provisions) (England) Regulations 2007 (as amended; similar provisions exist in Wales). In the present case, demands were sent in 2008 and 2009 but the prescribed information was not sent until shortly afterwards. The LVT found that this was not compliance with s.21B, 1985 Act, as the prescribed information did not “accompany” the demands, but followed a few days later (well, strictly speaking, the Statutory Instrument was sent). On appeal to the Upper Tribunal (Lands Chamber), the landlord argued that – notwithstanding 11 days between the demand and the summary – the summary had still “accompanied” the demand.
The President dismissed this argument. It was “manifestly” (at [13]) the case that the summary did not accompany the demand. The two documents had to be sent together. Further, it was not sufficient to send the SI. The prescribed information was what was required, in the form described in the SI. The SI did not constitute the prescribed information, it explained what was required to be in the prescribed information.
This is a pretty silly decision, although technically correct. Why do service charge demands have to be accompanied by the info? So the Tenant knows his/her rights. These tenants knew their rights, albeit 11 days late. What, exactly, is the problem?
From a practical point of view, if service charges aren’t paid either the landlord can’t afford to supply the services, or they decide not to bother being a landlord, and dispose of the property. How does this help Tenants?
Or from the alternative practical view, what is the difficulty for landlords in complying? And, if the info was to be served late, why not just send a further copy of the service charge demand with the info, thus satisfying the requirement?
Exactly – I suspect my landlord clients will quite welcome a hard and fast rule to follow.
I may be wrong, but I think the impact of the decision was simply to do with the costs of county court proceedings rather than the ability of the landlord to recover the service charge costs at all. In other words, the demand (without the prescribed information) was sufficient to satisfy the s.20B(2) requirement about provision within 18 months of them being incurred of details of the service charge costs and the amount to be charged to the lessee so that the landlord was not barred, for ever, from pursuing the service charge debt once the prescribed information had been properly served. Of course, if, as in this case, the proceedings were issued prior to the prescribed information is served accompanying the service charge demand then those proceedings are invalid as there is no debt at that time and the costs of such proceedings as incurred by the tenant ought to be awarded by the court against the landlord.
Sort of – the charges in dispute in the LVT were legal costs, but it wasn’t a s.20B(2) point. The key passage is [11], which says in terms that a demand must always be accompanied by a summary
My Landlord and their RMC served a CC summons on me, not only for a very small sum of arrears, but whilst I was in regular dialogue trying to negotiate a discrepancy in their accounts.
Just to make it even more difficult they sent said summons to the property in question, NOT my residential address. I ve been letting the flat for 17 years using the very same estate agent whom are the RMC. They had my home address on file.
By failing to send the Court papers “Recorded Delivery” meant the package was left lying in the communal hallway 3 weeks, until the Court hearing had nearly passed.
When I eventualy received them I had only 3 days to make my defence. The dates and amount in arrears were incorrect, as was the address they provided and the law firm even got my Landlord, as the Claimants name wrong.
They never supplied me with the correct demands accompanied by the Summary of Tenants Rights Ref to my Lease clause. Also failed to comply with Section 20B….18 month ruling.
However still to this day 2 years on, I have a bill of £2,150 in Solicitors fees attached to my Lease as “Admin Charge”. Despite their Solicitors withdrew the court case, no new summons was ever issued and no Court made an award for this charge.
I paid all £250 that was outstanding in full, even though I knew this was incorrect….Only some 12 months later to have a refund of £90 and a very short apoligy from the RMC.
I recently made a complaint to TPOS who investigated my claims, and ruled in my favour. They awarded a small sum as compensation from the RMC for failure to communicate to a reasonable level and for providing misleading and unclear accounting.
My compensation was £150 !!
I ve looked into having this matter cleared by Solicitors, and frankly their fees would be nearly as much as the Admin Charge on my account.
Anyone got any advice please?
Many thanks,
Brian
We can’t give advice on individual matters through the site.
How would I be able to receive advice please?
Well we are solicitors and barristers. We do what we do here for free, But proper individual advice we get paid for. You’ve said you don’t want to pay for advice. So that is a bit of an impasse.
Arh that old adage of “not such a thing ad a free lunch” ect. So thanks for….for what? Ah yeah nothing!!!
So please remind me what this page is for exactly.
Providing updates and information on housing and leasehold law. Free to all, not even any advertising.
We are not insured to give advice through the site, so we don’t, because we have no intention of putting ourselves at risk in order to provide free advice to those who could obtain it otherwise. You apparently missed the bit right above the comment form that you have just used that looks like this.
Meanwhile, please do lecture me on how I am obliged to advise you for free…
Never asked you for free advice. Other than to ask you if what I had supplied in my original post, were my Landlords and/or RMC lawful in serving the summons, or not?
Given the incorrect procedures they followed, failure to excercise Sect 20B, the incorrect details to the Courts and issuing the summons to the rented flat, not the address they know and have on file as my home.
Is it lawful to place these charges on my account as an “Admin Charge” despite the court claim being withdrawn by their Solicitors, possibly as they knew it would be “stuck out” by the judge. So there was no Court award.
Finally please may I ask if I do take out a civil claim against one of the other 2 parties. Who is ultimately responsibe for the mistakes and errors in the accounts, and oversights in Pre Court Action protocol, my Landlord or the RMC as their appointed agents?
Many thanks.
We can’t offer advice on individual issues.
“Other than…” is your looking for advice.
Kris thanks for your comment, not sure what or why you gave this.
Just for your benefit, what I wished to ask Mr Peaker, whom as a Barrister should not have been outside his remit. Was not advice on my circumstances or what to do, but rather if the actions of my landlord and/or RMA were legal within the laws or not.
What is the case when the service charge demand is accompanied by the wrong summary as in an English Summary is sent with a Demand for a property in Wales instead of the prescribed Welsh Summary ? Is the Demand not due and payable until a new demand with the Welsh summary is provided ? Is there any case law on this point ?
Not that I know of, but I’d say demand not due. It is a prescribed Summary. There is case law on using the ‘wrong’ summary (an old version) in England which would support that.
Interesting. That is what I thought. Demand not due until a fresh demand is served with the right summary. Then there is a possibility that the 18 month rule can be invoked !
Do you have any case law references on the old version summaries being used ? If so, please post them.
You can have a search, see if we have any on here. Arguable that unaccompanied demand would take effect as a s.20B notice, I’d have thought.