Answers from Our Property Expert
What our customers are asking
"A lot of the directors' time is wasted in sending reminders to leaseholders who do not pay their service charge on the due date or who pay the wrong amount. To encourage prompt payment we recently informed everyone that in future we would impose an administration charge of Г‚ВЈ30 for late payment. However one leaseholder has said that this is illegal. We would be glad of your opinion on this matter. Although our lease agreement does not state explicitly that we can levy such a charge, it does state that the lessee shall "pay all rates taxes assessments charges impositions and outgoings....assessed or charged.... upon the owner etc (Clause 2 (1) b. " - C West, Ouseley Lodge
no this is not illegal I refer you to Schedule 11 of the Commonhold and Leasehold Reform Act 2002 which you can read up on at opsi.gov.uk the home for UK legislation your only consideration is whether 30 is reasonable and I would say from my experience it is.
"Do we need to continue to run two companies (the freehold company and the right to manage company? We also have a residents association do we need this also? Can they be merged together? And, do we still need to run 2 AGM's?" - R Gilett, SW11
Post the Companies Act 2006 need to run an AGM for any company UNLESS the Memorandum & Articles of Association specifically require you to do so companies or 1? The answer is that 1 company has to consume the other and here lies your problem. Your Freehold company cannot consume your RTM company as the FH does not have the right to manage, you have OM written into your lease forever! Your RTM company has a Memorandum of Association prescribed by the 2002 Act which do not include owning the freehold, ie, the RTM companies purpose would be exceeded. And, even if the RTM company was allowed to change its objectives, if it consumed the Freehold company then some people who did not buy into the Freehold may end up getting given a Freehold share If any vehicle is now extinct it is your Residents Association. Having ousted OM by claiming your RTM it has no real purpose.
"Is there a legal basis of a "right to light" that may be blocked by adjacent trees? We are a small development of 22 flats set in what was the copse of the Old Manor House in Bedhampton, Havant. Our grounds are surrounded on two side by trees both in our grounds and outside our boundary which act as a barrier from the road for us and is part of the street scene outside. The majority of the trees in our grounds are subject to Tree Preservation Orders and every couple of years or so we apply to our local authority for planning permission to maintain the trees. A few years ago the area in which we live was designated a Conservation area so now we not only have to apply for planning consent to have tree works on the trees covered by TPO's we also have to apply for any tree work under the Conservation Order. We have four blocks, three of two floors, ground and first, and one block which is in the wooded area of our grounds, has three floors, ground first and second. The leaseholders who live on the top floor of this block have asked for the trees surrounding them to be reduced in height to allow more light into there apartments. Our local authority trees officer is of the view that the trees are healthy and form part of the conservation area/character and street scene and are not in need of reduction. The tree officer maintains the "right to light" is a factor that does not come into the decision making when considering application for reducing trees." - Manor Court, S021
I know of no law that gives a legal right to light (where obstructed by trees) and can't possibly conceive there would be such a law If there were no doubt the councils would all be bankrupt from paying out !! there are rights enabling an owner to cut back parts of a tree that overhang your land there are liabilities should an owners tree cause structural damage to a neighbour's properties but I am not a lawyer!
"We encourage lessees in our large block to leave a spare key at Reception in case we have to enter their flats in an emergency. This is especially important in the case of leaks in the 80+ year old plumbing, or because many of the flats are unoccupied some of the time as they are used as pied a terres. Our question is what might constitute an emergency. " - A Carlucci, Russell Court
In short we feel the logical answer is Fire or Flood, and in this context flood means MAINS PRESSURE leak and to support this, these are generally the 2 instances that the fire brigade would kick a door down to gain access. For a non mains pressure leak, only if the owner was living overseas and the flat unoccupied and one could demonstrate sufficient attempt to contact the owner then such situation could become an emergency.
"We have 2 blocks on our estate - the leases provide that we collect service charges as a whole not block by block. At a previous AGM it was minuted that each block should have its own reserve towards its own repairs. This has been the convention since, but now this is being objected to by some and we need to understand how sound our decision was." - Mr Stone, Heathfield House
Sadly, you have fallen foul of the misconception that company resolutions can change leases. This is NEVER the case, so the minutes and intention is not enforceable in law an AGM should consider only the company accounts to be filed with companies house service charge accounts are a matter of contract law and unless BOTH PARTIES agree to vary the contract the minutes and resolution have no effect. To vary the contract other than by both parties agreement (which means changing leases by way of a deed of variation to reflect this) then it is void If 75% agreement were achieved then Section 37 of the 1987 Landlord & Tenant Act then you could apply to the First Tier Tribunal to change the leases