Elim Court, a retirement site in Plymouth, learned today that it had won its epic battle for right to manage in the Court of Appeal against its landlord Israel Moskovitz.
His Avon Freeholds Limited managed the site through Y and Y Management, run by business associate Joseph Gurvits. Y and Y is a management company accredited to ARMA, but was rebuked by the regulator for “intemperate and unprofessional language” in June 2014.
London-based freehold investor Mr Moskovitz, believed to be a Canadian citizen, bought five retirement sites in the west country in 2011, and most have been highly controversial.
Regent Court, also in Plymouth, won its right to manage in July 2013 after years of frustration that saw the case appealed to the Upper Tribunal.
But Elim Court was always the greater concern, its right to manage having failed at the lower and upper tribunals, with Israel Moskovitz’s legal costs escalating.
The residents had employed the services of Dudley Joiner’s Right To Manage Federation, which is not a federation but a private company of which he is the sole director, to achieve right to manage.
Mr Joiner said that it would pick up the legal bill, including Mr Moskovitz’s, for the action. However, with assets of just over £4,000, the RTMF’s resources were alarmingly small to cover a failed action in the Court of Appeal.
As a result, Carlex repeatedly urged caution on the residents.
But all is now vindicated with victory, for which congratulations must go to barrister Winston Jacobs, of Lamb Chambers, instructed by the Bar Pro Bono Unit (IE he did the job for free, and his CV is rightly enhanced).
The victory also marked defeat for barrister Justin Bates, the Mr Fixit for any freeholder seeking to thwart a right to manage application by leaseholders.
The Court of Appeal, headed by Lord Justice Lewison with Lady Justice Arden and Mrs Justice Proudman, noted Mr Bates’s expertise in this unfashionable corner of the law.
Lord Justice Lewison wrote that Mr Bates was “a seasoned warrior in the trench warfare over the right to manage” and his argument was described as “technical in the extreme”.
The opening sentence of the ruling acknowledged that errors had been made:
“It is a melancholy fact that whenever Parliament lays down a detailed procedure for exercising a statutory right, people get the procedure wrong. This is one such case.”
Nonetheless, the leaseholders of Elim Court have won their right to manage.
They can now send Mr Gurvits and Y and Y Management packing and choose a property management company of their choice and answerable to themselves.
The ruling from Lord Justice Lewison also says:
“I have drawn attention to the Government’s policy that the procedures should be as simple as possible to reduce the potential for challenge by an obstructive landlord.
“That policy has not been implemented by the current procedures which still contain traps for the unwary.
“This is, we were told, the third attempt by the RTM company to acquire the right to manage Elim Court.
“The Government may wish to consider simplifying the procedure further, or to grant the FTT [the lower tribunal of the property chamber] a power to relieve against a failure to comply with the requirements if it is just and equitable to do so.
“Otherwise I fear that objections based on technical points which are of no significant consequence to the objector will continue to bedevil the acquisition of the right to manage.”
The ruling can be read in full here
Professor James Driscoll’s analysis of the case can be reader on the Leasehold Knowledge Partnership website here