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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
I note you have asked the management company for further information regarding the charges they are requesting. May I ask if you have done so in writing (e.g. email etc) or only verbally to date please?
sorry for being rude- hi Joshua
Thanks. Have they responded to that email in the manner you refer to in your question or did they reply verbally?
Not at all - hi there.
some of it was over the phone and some was by email. my final requests for them to tell me what I owe and from which years have been ignored.
Thanks. Where possible try to maintain communications with them in writing - email etc - and where they will not commit to writing (some agencies are notorious at avoiding written communications - consider confirming the content of any verbal communications by email as soon as possible following putting the phone down - e.g. email to them "I write to confirm the details discussed during our telephone conversation... The reason is so you have an accurate record of what has been requested/discussed in the hopefully unlikely event you decide to proceed to a property tribunal as follow.
In terms of your rights... you have considerable rights as a tenant under a long lease:
That was my last exchange with them.
Thanks. That is not good enough as you say. As a tenant you have a right to challenge the landlord (or his agent) in respect of costs incurred. You can start by demanding the landlord provides a summary of service charges paid under by serving a s21 notice on the landlord. You then have the right to demand further information if you require it backing up the summary you receive by serving a s22 notice. If the landlord does not provide the information requested then he can be liable for prosecution and a fine of up to £2500. The local authority can assist in prosecution if necessary.
You may wish to consider reverting to the agent advising that their request does not constitute a valid demand and if necessary you will formally demand a summary and if necessary further information under s21 and s22 Landlord and Tenant Act 1985 notices respectively but you do not wish to unnecessarily put them to unnecessary work and so would repeat one more time your informal request for them to profile a breakdown showing how the calculate the charges they seek.
is the burden on them to produce invoices, or on me to prove I am paid up-to-date?
If they continue to refuse then you can formally request a summary of the service charge accounts including any breakdown of how they calculate what is due under s21 Landlord Tenant Act 1985 and if you require further information following receipt of the same, then such further documents as you reasonably require under s22. It is for them to reasonably substantiate what they claim is owed before you are under an obligation to pay or in deed challenge it.
To reasonably substantiate the claims they would for example need to be able to provide you with copies of invoices they claim are unpaid, and a copy of your tenant ledger showing how they calculate any underpayment.
they have given me service charge invoices and what my payments have been and they are so complex! I still dont come out with the same figure as them, nor do I trust that all the payments I have made are included. I am going to have to go through all my statements aren't I?
will this dispute hold up my flat sale?
They cannot claim back further than 6 years. Also any invoices they have provided are not valid unless they are accompanied by a summary of tenant rights. Finally any amount demanded for major works that are more than £250 are not valid unless they have carried out formal consultation on those works with the tenants.
The ledger they provide must be prepared so that a typical person without accounting knowledge can interpret it. It should simply be a ledger showing debits and credits for your account. If they have provided something that is not clear or you do not agree with their calculations you can challenge it and they must be able to substantiate their position reasonably clearly again so that the average person can follow their calculations.
Regarding your sale, if the matter remains unresolved prior to any sale a typical way of dealing with the matter is by way of a retention whereby your solicitor agrees to hold a balance sufficient to cover the dispute until the dispute is resolved at which time whatever is agreed will be paid to the landlord / agent and any balance returned to you. This is normally sufficient to allow sales to proceed where there are outstanding matters of dispute
I think they are in the clear with all the inoices I have receved, and paid over the years. That paperwork is in order. The reason their statements are so confusing is that their invoices dont tally with the amounts I paid. Naturally, I didnt make up those amounts, so their statement must not be correct. In addition...if they are claiming this amount as a 'brought forward', and it isnt clear which year/years it comes from, how do I know it is with 6 years?
ps- I dont have a full set of bills myself as I have moved around over the last few years. I have always paid in good faith and always believed I was up-to-date
The ledger should tally with invoices they must produce. i.e. if an invoice is for £1000 you should see a corresponding entry on the ledger for £1000. It may be that they break down the entries on the ledger into components - e.g. £250 ground rent £750 service charge but it should still be clear from the date of entry as to which invoice it relates to. For figures brought forward, it should be made clear how the figures that have been brought forward have been calculated - e.g. a ledger showing entries say to 2012 totalling £2000; the next ledger page showing a brough forward figure should tally with the previous total. If it doesn't this is something that must be explained.
If necessary you can request statements from your bank to check for payments made or if you have online access banks will often make several years of statements available online to search.
that's what I expected from a statement! unfortunately, it doesnt make any sense
Where payments go back some way if they have provided a ledger and invoices it can be a case of sitting down at a table with a pencil and boringly going through each invoice, ticking it off against the ledger and following the figures through with a calculator - ultimately ledgers are just addition and subtraction. If you find they claim a payment has not been made which you believe was, it will be necessary to check bank statements to find the payment as proof it was. It is tedious but it should not be complicated.
If they have provided a ledger which is not possible to understand then this is not satisfactory.
If you feel (and I do not for a moment suggest this is the case) that you just don't get on with looking at account ledgers (you would not be alone) then before going back to them it may be worth asking a friend or family member that has any experience with accounts to have a second look at it for you. If you don't have access to such a person, citiens advice will be able to provide someone to help
As above the ledger should be presented in a not dissimilar way to a bank statement and it should not be overly complex. If it is not then you can ask that they provide a clearer breakdown so the figures can be understood clearly.
my dispute with them is that they wont say which invoices have not been paid
that would be easy cos then all I would have to do is check with my bank
That is not a sustainable position for them to take because if they were to attempt to sue you for the monies they claim are owed they would need to produce the invoices they claim are unpaid to a court. It is a basic tenet of English law that a debt must be reasonably evidenced in order to be claimed in law. In the case of a business or leasehold debt the only way a debt can be evidenced is by way of an invoice.
all i want to do is make them tell me when i didnt pay and what amounts. how do I make them do that? I actually just want to pay if I owe, but I am not paying £800 which I cannot believe I would have ever overlooked even over several invoices
In these circumstances you may consider reverting to them advising that you consider all invoices have been paid and that if they claim to the contrary, that they identify which invoices remain unpaid so you can check your records further. As they have not identified which invoices they claim are unpaid, there is no debt owing.
As above in order to be able to sue for a debt in law they must produce an invoice(s) and claim that it has not been paid. If they will not or cannot do that there is no claim to answer.
Is there anything above I can clarify for you?
I think that has answered my question then. They have to produce the invoices, they cant just say 'because our system says so'. Do you think I should write to them setting this out and see what happens? It's weird that they have never pursued me for the amount I owe as well....
Exactly so. In law the burden rest upon them to show on the balance of probability that a debt is owed by producing an invoice and claiming it has not been paid. A business of any kind cannot claim a debt without an invoice because an invoice is the device by which a business raises a demand for payment. Until a demand has been made, nothing is owed.
and a demand cannot be made via a non-descript 'brought forward' amount which is what they have done?
Accordingly your position will presumably be that you consider that you have paid everything owed to date. If they claim monies are owing, you await their confirming which invoices have not been paid (or paid in full) and you will check your records.
No a demand must be made by way of an invoice (which in the case of leasehold service charges must comply with legislation as above - e.g. inclusion of summary of rights etc).
it is not sufficient just to place an entry on a ledger or account. Without an invoice, the entry is not recoverable.
Have I been able to help you with all your questions on the above for now?
yes. Thank you so much Joshua. Will this answer stay on my account as I might scavenge some of your wording for my letter. Is that allowed?
Yes of course. You should also be able to copy and paste it into a document if you wish. If I can help any further as the matter develops please do not hesitate to come back to me.
Thank you. have a nice weekend
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