Whilst many leases often have clearly stated contribution clauses, others have very general and brief/restrictive contribution clauses such as ‘to pay a fair proportion of the cost of maintaining and repairing party walls and structures, shared pipes and wires and other things used in common’.
This somewhat woolly description means that leaseholders may not always agree on its interpretation and often compare the cost of their service charge contributions to those paid by others in the same block, especially if they have similar leases. However working out the cost on different sized flats is a percentage cost based on a number of factors:
- The amount of rooms (usually bedrooms) in each flat especially if the block has a similar number of identically written leases;
- The size of the flats calculated by floor area and which is usually considered the most fair and is the most commonly used because a larger flat will have cleaning and decorating/maintenance liabilities than those of smaller flats;
- What facilities are provided and which flat uses them, (such as lifts or main front doors);
- The rateable value in largely pre-1990 leases (council tax banding);
- Other considerations can include the location and the view.
The methods used for applying apportionment will be one of the following 3 ways:
- A simple fraction, where a building with 20 flats with each flat owner paying one-twentieth of the service charge expenditure;
- A simple percentage, so one twentieth would be 5%;
- A variable percentage, where some flat owners may pay more because of size or overall number of rooms. For example if 10 flats have one bedroom and the other 10 have two, then the first 10 may pay 4% and the other 10 pay 6%.
Knowledge of the block, a site plan (or both) can also help to make sure the costs are divided fairly but the apportion payable per flat always needs to total 100%.
If there is no apportionment then leaseholders and freeholders can apply to the First Tier Tribunal to get them to decide what is payable under s27a of the Landlord and Tenant Act 1985. The FTT not only has the jurisdiction to decide whether the charges are reasonable but also to decide:
- Who is liable to pay;
- Who to make the payment to;
- The amount to be paid;
- The date of payment and how it is payable.
What follows is a ‘best practice’ guideline for setting a service charge budget:
- The ‘reasonableness’ of the charge for any item of expenditure should be able to be explained as leaseholders can approach the First Tier Tribunal (FTT) for a determination of whether:
a) The service charge costs were reasonably incurred;
b) The services or works are of a reasonable standard; and whether
c) An estimated service charge, payable before costs are incurred, is reasonable.
They can’t however avoid liability to pay service charges on the grounds of hardship. If repair work is reasonably required at a particular time and is carried out at a reasonable cost and to a reasonable standard, the tenant must pay the corresponding service charge dictated by the terms of its lease.
- The budget should be as close to the previous year-end accounts as possible (and the other way round) unless any discrepancies can be fully explained. It is the standard of budgeting that can decide manager credibility with leaseholders. For example any significant underestimation can cause problems when a) there is not enough money in the service charge account and b) leaseholders are not going to be happy when they are expected to make up the shortfall on top of the next years contributions. Setting a budget is however not an exact science and in an old building such as ours, it can be very difficult to project exactly what will be required and when.
- Artificially low forecasts of the costs for the following year are a breach of consumer protection legislation even though it is often used by developers as an incentive to make purchasing a property more attractive. The developer can walk away with the profits or at least distance themselves through whoever manages the block, but it will cause major problems for leaseholders later on.
- Budgets should be in the same format as the annual accounts (with the same expenditure headings) to enable leaseholders to make proper comparisons.
- Enough time must be allowed for the review period to enable leaseholders time to comment.
- Any annual increases (such as increments to staff salary) must be allowed for.
- Any contract reviews for services and supplies to the budget period should be linked where possible so that increases and costs can be confirmed in advance of the budget being set.
- Any ‘one-off’ costs should be allowed for.
- VAT should be allowed for but it is not normally recoverable on residential property invoices.
- Some contracts charge by lunar month and not monthly (meaning 13 payments are made instead of the monthly amount multiplied by 12);
- Current expenditure is usually the best sign of future costs but any marked changes need to be able to be explained;
- For items such as utilities there are likely to be fluctuations, such as heating costs. Approval should be sought from the client which will be the freeholder or resident management company.
- Consult leaseholders and residents associations.
- Ensure the budget is sent out giving enough time for leaseholders to comment and/or raise questions.
- Invite all leaseholders to an annual budget meeting whether they are owner-occupiers or renting landlords.