We Take Control But…..
I had already attended a number of meetings held by various leasehold organisations and the one that was the turning point was held by the Campaign for the Abolition of Leasehold (CARL) in 2006. I took my partner to this one and we were both impressed by the talk about buildings insurance given by guest speaker Roger Southam of managing agent Chainbow. At the end of his talk he asked the audience if they had any questions and jokingly my partner asked ‘will you come and manage our block please? He invited us to come and chat to him at the informal drinks that were held after the meeting and to our complete surprise he agreed to take us on!
To be honest it was a bit of an anti-climax after all the effort that had been put in to that point to get any assistance and we wished we had met him years earlier!
Everything started to happen all at once because after that we also met the criteria for the Right to Manage which Roger Southam guided us through, from forming the company (where my partner agreed to become one of the company Directors) to acquisition date. Alongside this a service charge budget was set from scratch as we inherited nothing from the previous freeholder.
We also commissioned a Building Condition Report/10 Year Maintenance plan. This was not only to show the condition of the building and to see exactly what we were up against, but to start planning the order of the works.
Compulsory Acquisition of the Freehold
We also later acquired the freehold via compulsory acquisition, again taken through the process by Roger Southam but before we did, I asked the council what they could do as the only people we could realistically approach were the freeholder’s family solicitor. We were hoping that if they failed to respond we could apply to the LVT (now the FTT) to enforce our request to purchase. If we did get a response and the offer was rejected we would at the very least actually discover who our freeholder was because the Land Registry showed it as still being owned by our (assumed deceased) freeholder. The council responded by issuing a Notice to the solicitor under s16 of the Local Government (Miscellaneous Provisions) Act 1976 which was a legal notice intended to obtain particulars of persons interested in land. The law required the notice recipient to comply with the request and failure to do so constituted an offence.
Unfortunately,his reply stated that ‘the s16 notice did not apply to him’. What this meant was that when the local authority considers that it ought to have information connected with any land, it can a) serve notice on the the occupier of the land, b) any person who has an interest in the land either as freeholder, mortgagee or lessee or who directly or indirectly receives rent for the land, and c) any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it. He said he did not fall within any of those categories.
The response was unsurprising but it did not however detract from the fact that we DID have the legal right under s3 of the Landlord and Tenant Act 1985 (duty to inform tenant of assignment of landlord’s interest) to expect that someone would have sent us a notice advising us of any change of freeholder.
As a result I rang the Law Society to ask for advice regarding the solicitors response to the notice and was advised that he was under no obligation to provide the information to any third party (us) unless instructed to do so by his own clients (i.e. family members).
I passed this information back to the council but reminded them that we did not receive official notification of our freeholder’s death. It only came up in a conversation I’d had with the former buildings insurer a few years previously. Whilst I had tracked him down to an address in Pakistan I still could not get concrete proof of whether he was alive or dead. Nor did I find out why there was such secrecy surrounding the issue.
Nevertheless if we wanted to pursue compulsory acquisition of the freehold we still had to prove that we had made every attempt to find him. This meant:
- A notice of claim being served on the freeholder’s last known address or the same notice served in the London Gazette or a local paper;
- A request sent to the court to dispense with the serving of a notice;
- The Land Registry searched to make sure that the freeholder no longer owns his last known address, has moved to an unknown address or the services of an Enquiry Agent has been engaged;
- Witness statements provided confirming that a visit to the Freeholder’s last known address yielded no forwarding address, or;
- An absent freeholder title indemnity policy that a recent purchaser of a flat may have taken as a condition of securing the mortgage.
- Witness statements confirming that a visit to the freeholder’s last known address did not provided a forwarding address.
As we could not serve a preliminary notice ahead of applying to the court our managing agent made a request for that part of the requirements be dispensed with. An application was then made for a Vesting Order under the Leasehold Reform, Housing & Urban Development Act 1993 to the County Court, on a CPR Part 8 application form which required us to satisfy the court that all reasonable steps to locate the freeholder had failed as per the above.
Our case was proved and the Court issued a judgment setting out that a) we could acquire the freehold with funds to be ‘vested’ in the Court and b) deferring the case to the FTT for determination of a ‘reasonable’ premium.
There is currently £10 waiting for our ‘absent’ freeholder should he return from the dead!
TOXIC LANDLORDS AND TENANTS
This isn’t by any means the end of the story because with an absent freeholder and 18 our of 22 flats sublet, we also inherited some appalling landlords who did pretty much what they liked. We suspected the involvement of the local council due to the rapid turnover of tenants and the continual dumping of household furnishings.
When I asked my local council which flats were involved (whilst we went through the Right to Manage process) all they did was ask me why should any landlord have to tell anyone else who he/she was sub-letting to, private or otherwise? They also quoted Data Protection!
I later learned that other departments within the council could also be using the block such as the Housing Department Social Services Mental Health Team and the Learning Disabilities Team. I was unable to get a break down on this either because of ‘client led’ databases and again, Data Protection!
So, being kept out of the loop meant that we could not advise against councils placing certain people with certain landlords. We ended up housing homeless people with drink, drugs and anti-social behaviour issues with landlords that were totally unfit to be acting as such and who refused to assist when the inevitable happened.
The first of these toxic partnerships can be read here.