Demands and the Debt Pre-Action Protocol
It is usually the managing agent who collects the service charges and it is extremely important that they have a robust collection process in place. This is because continual non-payment will have a serious impact on the ability of the freeholder (or the agents) to carry out all the services which the building requires.
Our managing agent’s process is as follows:
Day 1 – Invoice becomes due.
Day 7 – Telephone call and a reminder letter sent. It is important to note that whilst there is no legal obligation for such a letter to be sent it is considered fair to do so because the non-payment could be an oversight or it could be that the leaseholder has hit financial difficulties.
Day 21 – Telephone call and a stronger chasing letter.
Day 30 – Monthly Statement (sent at the beginning of each month).
Day 35 – Warning letter sent stating that the mortgage company will be contacted and legal proceedings will be instigated. The letter will read something like this:
‘Please be warned that if you miss any service charge payments you will be breaking your lease and possibly your mortgage agreement (if you have one). If you fall into debt we will tell your lender who may decide to pay this on your behalf. If this is the case they will add your service charge debt to the mortgage you still owe them and you will pay interest on the charge’.
Day 42 – Approach Land Registry to get details of mortgagee. If a mortgage is held then a pre-legal letter is sent to the mortgage company and to the debtor informing that the letter has been sent to their lender.
If no mortgage is held, then a pre-legal letter is also sent to the debtor. This means that this is the last chance to pay the debt and the debtor will receive a 7 day legal notice from a debt collector or a solicitor.
Day 56 – If the mortgage company is inclined to make a payment then they usually ask for between 7-28 days for their borrower to respond. If there is no response from the mortgage company or the debtor or the mortgage company declines to help with payment (which they sometimes do on the instruction of the debtor) then legal action would be requested from the freeholder.
Day 63 – Assuming no payment has been received, the next step is now that of adhering to the Debt Pre-Action Protocol.
THE DEBT PRE-ACTION PROTOCOL
Before any legal action is taken to recover arrears, the Debt-Pre-Action Protocol must be adhered to. It came into effect on 1st October 2017 but it has not been specifically written for leaseholders in arrears, rather they have been included within it. The full protocol can be found here.
There are distinct similarities between this and the basic criteria under the Civil Procedure Rules (CPR) Practice Direction Pre-action Conduct but the protocol has expanded on this with the aim being to encourage early communication between the parties and avoid court proceedings either by a) agreeing a debt repayment plan or b) referring the matter to some form of Alternative Dispute Resolution.
A Letter of Claim is now required to be sent to the defaulting leaseholder containing the following information:
- The name of the lessee;
- The debt amount;
- Period of claim;
- Accruing interest (if any);
- A copy of the most recent statement of account;
- Details of any agreements made with the lessee in relation to previously agreed payment plans and why these are no longer acceptable;
- The lessee’s correspondence and email addresses;
- Details of how the debt can be paid;
- The address to be used for the completed Reply Form.
- A copy of the Information Sheet;
- The Reply Form;
- A financial statement form, i.e. the Income and Expenditure Form enclosed with the Letter of Claim.
So what has changed?
Lessees now have 30 days to respond to the Letter of Claim before court proceedings are issued. Previously 14 days was considered acceptable from the first Letter Before Action sent by a solicitor and a further 14 days should a second letter need to be sent. The lessee will also be allowed more time if they want to take their own independent legal advice. If the lessee requires time to repay the debt, both parties should aim to agree either agree to an instalment repayment plan, based on the lessee’s income and expenditure but if the landlord cannot agree or is not ready to accept a lessee’s proposed repayment plan, it must explain reasons for its refusal in writing.
If the parties agree a debt repayment plan, and the lessee starts but then stops complying with it, before issuing court proceedings, the landlord must send an updated Letter of Claim and comply with the Debt Protocol all over again with the lessee having another 30 days to respond to the second Letter of Claim. Previously 14 days was considered enough.
If a lessee has sent a Reply Form to the landlord but no debt repayment plan was agreed between the parties, then the landlord should give the lessee at least 14 days’ notice of its intention to issue court proceedings. Non-compliance with the Debt Protocol may be taken into account by the court when giving directions for the management of the proceedings and/or making orders for costs.
THE 18 MONTH RULE
If a freeholder can’t (for any reason) send out a demand for payment within 18 months of a cost being incurred they can send a ‘special Notice’ under s20b of the Landlord and Tenant Act 1985, (limitation of service charges: time limit for making demands) instead of a demand for payment. This is known as the ’18 month rule’ because when prepared properly and sent within 18 months, is the only time a landlord can demand payment later than 18 months as leaseholders have been made aware that they will be required to pay a share of incurred costs at a later date (on account) as a service charge. This to ensure that they do not receive unexpected bills long after the costs were incurred. Such costs must be ‘relevant costs’ and listed at the time of writing the notice. This is because any non-chargeable areas where a leaseholder does not have to make contribution fall outside of the legislation. It is also important to note that any s20b notice which excludes certain costs which a landlord, (or agent on their behalf), intends to recharge at a later date, will also not meet the s20b requirement. So these too must be listed.
Case law has established at the Court of Appeal in the case of Burr v OM Property Management  EWCA Civ 479 rules that costs are not “incurred” for the purposes of s20b of the Landlord and Tenant Act 1985 on the mere provision of a service or supply, but only when the liability has crystalised (whether on payment or presentation of an invoice). So the 18 month period runs from the date a Landlord receives an invoice instead of the date the services or works are supplied.