By Gill Nieuwland

The Leasehold Valuation Tribunal offers freeholders and leaseholders an accessible and speedy approach to dispute resolution. At least, so it is repeated.

Designed for use by laymen, the setting is supposedly more user-friendly and informal than the courts, and legal costs can be kept to a minimum.  That is the theory, but as the Dennis Jackson case demonstrated lawyers have worked around the £500 limit on legal costs when taking leaseholders before the Leasehold Valuation Tribunal.

This is not so easy if you are applying to the Leasehold Valuation Tribunal as the applicant, which is why the Leasehold Knowledge Partnership so often advises leasehold litigants to pay, then fight, rather than defy and lose.

A recent survey carried out by LKP shows that while the majority of leasehold owners choose to represent themselves, freeholders are much more likely to have recourse to legal representation, as they know those legal costs will most likely be paid by the lessees.

In fact, unless the Leasehold Valuation Tribunal is willing to make a s20C order, the leaseholders will end up footing the bill for the freeholder’s legal costs through the service charge, so it is hardly surprising that over 85 per cent of freeholders opt for the services of professional solicitors and barristers from expensive specialist leasehold chambers, regardless of the merits of the case.

The resulting imbalance is exacerbated by the complexity of the legislation and the lack of resources available to leaseholders. The number of applications to Leasehold Valuation Tribunal is rising steadily, and last year alone 25,000 leaseholders contacted the Leasehold Advisory Service for free legal advice. You may find them at www.lease-advice.org. They can provide useful advice, but can also be blandly neutral. LKP is refreshingly unambiguous, and pro-leaseholder.

Leaseholders appearing without legal representation – laymen, who have no legal experience or knowledge – will find it daunting to be pitted against barristers. It is difficult for a wronged leaseholder to muzzle his emotions, and to present a case properly requires objectivity. A clear-headed and dispassionate presentation of the issues is essential, but no mean feat for a flustered leaseholder!

If we then factor in the skill of the freeholder’s barrister in exploiting the more relaxed rules of a tribunal designed to simplify the process for laymen, there is no doubt that leaseholder lay applicants are disadvantaged.

If you are a leaseholder bringing, or defending, a case in person at Leasehold Valuation Tribunal, you may encounter all sorts of sharp practice, or worse, a more subtle form of prejudice.

Forewarned is forearmed, however, so check out the list below:

Pre-Trial Review

At the pre-trial review, the Leasehold Valuation Tribunal tries to clarify the issues, offers a mediation service and sets out instructions for the conduct of the case.

If the parties manage to reach agreement on any of the issues, it’s important to set out clearly the details in writing. Any “gentlemen’s agreement” will not be worth the paper it’s written on, in later stages.

Regulations prescribe that at the PTR, the Leasehold Valuation Tribunal shall:

“endeavour to secure that the parties make all such admissions and agreements as ought reasonably to be made by them in relation to the proceedings; and record in any order made at the pre-trial review any such admission or agreement or any refusal to make such admission or agreement.”

In practice, leaseholders may find the PTR order simply makes no reference to their offers, or a recalcitrant freeholder’s refusal to negotiate. It’s important to have this information on record, for it may be relevant to the question of costs later on.

Communications

All communications between the Leasehold Valuation Tribunal and either freeholder or leaseholder must be copied to the other party. The freeholder’s solicitor may be on friendly terms with the Leasehold Valuation Tribunal clerks and write or call them up without telling you. So, watch your back!

Documents

The freeholder holds most of the documentation on which your case depends, and may make it very difficult for you to get hold of the information you require. Insist on your right to view all the evidence before the hearing. Unlike a formal court, the Leasehold Valuation Tribunal is very relaxed about admitting late evidence, and they won’t penalize a freeholder who produces at the last gasp documents you haven’t had a chance to examine.

You may ask the Tribunal to make sure you have plenty of time to examine all the documents you need, including any witness statements, before the day of the hearing.

Do not hesitate to insist on adjournment in these circumstances: lawyers presenting late evidence is a well used tactic to unsettle leaseholders. See “LVT survival guide pt2″ here

Bundle

The Leasehold Valuation Tribunal normally invites the parties to agree on the documents to be included in the “Bundle”.

Make sure the Freeholder adheres strictly to the agreed timetable for producing his documents. If these are produced too late to allow merging the documents of both parties into one single Bundle, you will be severely disadvantaged at the hearing. Dealing with two sets of page numbers is terribly irksome and time-wasting. The Tribunal will end up referring only to one Bundle, and it won’t be yours!

Keep a list of important page numbers handy for quick and easy reference.  Mark the top of important pages with Post-its, different colours for various topics.

Submissions

Where to start? It can be difficult to do justice to a complex case without getting bogged down in a mass of detail.

However, it helps to start by drawing up a table, with a brief summary of your own and your freeholder’s points on each issue in dispute. In this way, you will be sure that you understand the case yourself, before you start trying to explain it to anyone else! You can also submit this at the hearing for handy reference.  Another good pointer to bear in mind is the following:

Imagine the panel were given your written submissions to read – and absolutely nothing else about the case. Then, having read them, they should

• a) know basically what has happened;
• b) know which issues they will have to decide (both factual and legal);
• c)  know what you have to say about those issues;
• d) be convinced you’re right.

(Gleaned from “The aim of written submissions” on the excellent etclaims.co.uk, by Naomi Cunningham and Michael Reed, concerned with Employment Tribunals, but much of their advice is also useful to leaseholders at Leasehold Valuation Tribunals).

Michael Reed further suggests attaching to your submissions a separate chronology of the facts, which is much clearer and easier to refer to at the Leasehold Valuation Tribunal. It only distracts from the flow of your argument if you’re trying to dig out these details from various submissions.

Always be prepared for the unexpected, however. I was left floundering in a hearing after the freeholder’s barrister succeeded in having my written submissions excluded before the Leasehold Valuation Tribunal had even seen them. Had it not been for the tribunal’s vigilance, he would have kept his own copy of those submissions, which he had heavily annotated over lunch.

A rather questionable trick from a professional barrister!

Rules of evidence

The rules of evidence at Leasehold Valuation Tribunal are less strict than in court, so watch out for incomplete or improbable documents, seen for the first time long after the fact …

Doctored emails are a great favourite, being simple, quick and cheap to turn out.

Such evidence ought to be inadmissible. If you know it’s a fake, though you may not be able to prove it, as you don’t have access to the originals, you may still make a strong case for it to be excluded.

Hearsay

Anyone unfamiliar with the English/Welsh tribunals system may be surprised to learn that hearsay is admissible. This is something you need to be aware of and prepared for.

As this is a legal matter, it’s well beyond the scope of this article. However, further resources are widely available online, including the following

http://leadingcounsel.co.uk/articles/2008/07/04/hearsay1/

Iolanthe, sadly, won’t help you….

Lord Chancellor: No. It’s a nice point. I don’t know that I ever met it before. But my difficulty is that at present there’s no evidence before the Court that chorused Nature has interested herself in the matter.

Strephon, an Arcadian shepherd: No evidence! You have my word for it. I tell you that she bade me take my love.

Lord Ch. Ah! But, my good sir, you mustn’t tell us what she told you – it’s not evidence. Now an affidavit from a thunderstorm, or a few words on oath from a heavy shower, would meet with all the attention they deserve.

Streph. And have you the heart to apply the prosaic rules of evidence to a case which bubbles over with poetical emotion?

Lord Ch. Distinctly. I have always kept my duty strictly before my eyes, and it is to that fact that I owe my advancement to my present distinguished position.

 

Witnesses

This merits careful preparation. You may call witnesses and cross-examine the freeholder’s witnesses.

I was given ten minutes at the end of the first day hearing to cross-examine two witnesses. This was insufficient, and I had not understood that the witnesses could also be called to the following hearing.

You will need to dissect their statements with extreme care to point up any lies lurking within, and prepare unexpected questions. It is also disconcerting in a room that is almost empty, to find yourself seated directly next to a witness you are cross-examining.

Apart from the fact that such proximity may feel really uncomfortable, even threatening, when dealing with a person with whom you’ve had a long running dispute, it is far better to be in a position to read the witness’s facial expression and body language. If they won’t change places, you may!

A tip from the freeholder’s barrister here: he consistently sat in the row in front of the witness, but one or two places further along the row. Close, but not too close, this diagonal position allowed him to turn back towards his victim, thus concealing his expression from the tribunal without risking torticollis.

Resources

If you going to present your case at Leasehold Valuation Tribunal, the first thing you need is some basic knowledge of the relevant legislation.

The RICS Service Charge Residential Management Code is a good starting point, and presumably that is the reason so few freeholders and managing agents seem to have read it!

There are many useful summaries of leaseholders’ rights to be found free of charge online. My favourites are

www.legislation.gov.uk straight from the horse’s mouth

www.lease-advice.org good general info, government funded

www.lawandlease.co.uk barrister Amanda Gourlay’s unsurpassed clear, intelligent, lively analysis of cases

www.newsontheblock.com/lvt/  a pity Justin Bates’ uneven but interesting coverage of Leasehold Valuation Tribunal cases comes at a price!

Should you require some grasp of the finer points, however, it’s well worth investing in one of the many excellent publications available (but unfortunately, usually very expensive!) from specialist bookshops, or online from Wildy & Sons. www.wildy.com

Personal favourites are Service Charges and Management Law and Practice from Tanfield Chambers, which comes with a handy CD-rom. This is a great investment if you have several different problems.

Also clear and concise is Service Charges, Law and Practice by Philip Freedman, Eric Shapiro and Brian Slater.

Self-representation can be daunting and horribly time consuming, but there’s no need to panic – a good deal of help is at hand if you just know where to find it!

Obviously I cannot help with legal matters, but please feel free to contact me for practical help or moral support. gill@termcontrol.co.uk

Gill Nieuwland is a leaseholder in Kensington, London. Her website on leasehold issues is: www.termcontrol.co.uk. She has been involved in the following cases:

LON/00AW/LDC/2006/0050
LON/00AW/LSC/2008/0001
LON/00AW/LDC/2008/0043
LON/00AW/LDC/2009/0041
LON/00AW/LDC/2011/0038
LON/00AW/LDC/2012/0097
LON/00AW/LSC/2013/0252

Readers are warmly urged to comment on the ‘LVT survival guides’ articles and include their own advice and tips

Readers are warmly urged to comment on the ‘LVT survival guides’ articles and include their own advice and tips

By Martin Boyd

1) If the freeholder produces a large bundle of documents just before, or in the week before, a hearing, you must tell the Leasehold Valuation Tribunal that you do NOT accept them.

It is frequent practice for the freeholder’s legal team to dump documents on lay applicants on the day. You cannot assimilate 50 pages in a 15-minute adjournment, although there may be gentle pressure from the tribunal to accept this.

Explain clearly that you are not in a position to consider the documents, as you have concentrate on presenting your main case based on the evidence provided as per the directions.

Argue that the new documents should either be excluded from the hearing, or that an adjournment be granted and the hearing rescheduled for another date.

Once you have accepted documents, the fact that they are late has no relevance. The Leasehold Valuation Tribunal will consider them as part of the case.

It is entitled, however, to accept a few late documents so do not try and reject just a couple of pages that may arise as evidence during the hearing from both sides.

The Leasehold Valuation Tribunal has regulations regarding these submissions and you should check them beforehand: regulation 15 and 16 of the Leasehold Valuation Tribunal (procedure) Regs 2003. But in July this will be replaced by the new Property Chamber regulations.

2) Write a skeleton argument in the weeks before the hearing setting out the law, the issues, and the page references within the bundle of the main issues you are arguing. This should include any case references, and the skeleton itself should be no more than seven or so pages long (depending on the size of the case). The skeleton argument will also act as your prompter during the case.

 3) Agree when skeleton arguments should be exchanged with the Leasehold Valuation Tribunal and the other side. The freeholder will often present his skeleton arguments at the last minute.

You are in a much better position if the Leasehold Valuation Tribunal agrees that they should be exchanged the day before the hearing. They will learn little from your skeleton, but you may learn a lot from theirs.

4) Listen to the Leasehold Valuation Tribunal chairman during the hearing.

This sounds easy, but this is a very difficult thing to do when you are desperately trying to present a case and find pages spread around the bundle.

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… and that includes suing their ex-managing agent, losing the case and passing on the £10,000 legal bill!

Lemmings unaccountably like to hurl themselves off the cliff-face into the abyss … and so, it seems, do Chelsea leasehold owners who cannot agree among themselves.

Years of wrangling mean that a rundown four-flat converted Victorian house just off the King’s Road is now being managed by a court-appointed managing agent. He has additional powers as the court-appointed receiver.

This is a mirror image opposite of the right to manage: the four leaseholders, three of whom are also the freeholders, cannot manage their own affairs so someone else is having to do so for them.

When neighbours cannot demonstrate a minimum ability to co-operate the result is years of argument, a neglected building, multiple LVT cases and … thousands of pounds wasted. In short, a disaster for all involved.

Each of the four leaseholders had until 5pm yesterday (Friday May 10) to pay £13,750 each for long overdue refurbishment works. They were also ordered to pay £2,500 each to pay the costs of a failed legal action by their managing agent, who had sued their ex-managing agent for release of service charge funds.

[Read more...]