Aggrieved leaseholders show clandestine video recordings among wealth of evidence presented to win over the judge
By Harry Scoffin
A freeholder’s wheeze of monetising a car park at a block of flats for all comers and dumping the running costs on the leaseholders has been called out in the property tribunal.
As a result, controversial freeholder Israel Moskovitz may have to pay as much as £103,323 in management, CCTV, general maintenance, refuse removal and cleaning charges – and won’t get any of his legal fees.
Turned from a garden into a car park in the 1980s, the space was designated for shared use by residents of Bridge Court, in Leyton, north east London, where one lucky block secured right to manage in September 2018 after years of toxic leasehold disputes.
Once open to all comers in 2010, when Mr Moskovitz’s freehold owning vehicle Triplerose Limited took over, the car park became a petri dish for loiterers, vagrants, dealers, abandoned cars, littered condoms and faeces. The landlord blamed leaseholders or their sub-tenants for the squalid conditions.
A year later, angry at having their cars repeatedly wheel clamped, the leaseholders took Mr Moskovitz to first-tier tribunal, which found that they could park there.
The October 2021 ruling is the latest dispute between leaseholders and Mr Moskovitz, which has seen a case a year before the property tribunal over the past decade.
Tribunal judge Nicholas Nicol rejected the claim of Mr Moskovitz and his appointed block manager Yaron Hazan, of Y and Y Management, that the anarchic situation at the Bridge Court car park, which endured for nine years, resulted from the behaviour of difficult leaseholders, their rental tenants or the supposedly downmarket nature of the neighbourhood.
The judge ordered half of the £81,336 management fees paid up by residents since 2014 to be returned to them as service charge credits.
In another win for leaseholders, refuse removal costs were slashed by 50 per cent, with general maintenance bills totalling £47,304 also to be diminished by 25 per cent as they involved “repairing or replacing items broken or stolen by members of the public who would not have access if the site were not open due to the car park”.
Leaseholders came armed to the tribunal with copious amounts of evidence they had accumulated over the years to illustrate the “constant and pervasive vulnerability of lessees to anti-social and criminal behaviour” they linked to the open car park.
Alongside photographs from 2017 of damaged property, fly tipping, “urine and excrement in the communal stairwell … and bin store”, leaseholders referred the tribunal to video they had taken, and now on YouTube, where they had recorded security breaches and the “cycle of degradation”.
One leaseholder even installed an outward-facing CCTV camera in the living room.
The footage, Judge Nicol wrote, revealed “non-residents in the car park … playing music loud or screaming, going through the bins, using the bin enclosure and the car park as a urinal, attempting theft of bikes, trying to get inside including by buzzing residents, congregating and drinking or smoking weed, drug dealing and using, racing/wheelspinning cars, using the car park as a work area for building works, and exposing themselves/leering at women”.
Although leaseholders acknowledged that some trouble-maker residents may have aggravated the development’s security situation through the years, Judge Nicol applauded “their considerable attempts to try to address the problems … including through this case and the exercise of the right to manage”.
Citing the lack of evidence against the leaseholders and apparent acts of blame-shifting by the freeholder and block manager, Judge Nicol was content that “they [the leaseholders] are not part of the problem”.
While recognising that some residents effectively took the law into their hands in having “felt brave (or reckless) enough to challenge the intruders themselves”, Judge Nicol volunteered some advice for Mr Moskovitz and Mr Hazan, who appeared before tribunal:
“The answer is to provide proper security for the site, not to expect residents to take it on themselves to challenge potential criminals.”
When questioned about the freeholder’s refusal to replace a broken security gate that would have kept the car park off limits to non-occupiers, Mr Hazan claimed that his client had told him that he had no duty to do so – which Judge Nicol found contravened lease terms.
Judge Nicol also heard from Mr Hazan that Mr Moskovitz had ordered him to avoid repairing the gate, which had been “inoperable … for around 9 years”, at least until the leaseholders began mounting a right to manage rebellion to wrestle control of the site off them.
The ruling highlighted that “leaving the gate in a state of disrepair in itself acts as an invitation for some people to access the area for their own anti-social purposes.”
Judge Nicol found that “having created a public car park from which they wished to earn an income, the Respondent was incentivised to keep the area freely accessible”.
Mr Hazan was criticised for being an unreliable witness:
“Unlike the Applicants … Mr Hazan could give no more than a few examples of specific incidents over that 9-year period. He provided virtually no dates or other details. The Tribunal would have expected to see letters, emails and file notes in which he recorded the problems and the action he and third parties, such as the police, took in relation to them but there were almost none.
“He said he printed off CCTV images to support his action but the trial bundle contained a grand total of one (the quality of which was so poor that it was impossible to make anything out).”
Only calling two annual general meetings in his nine years at the development, Mr Hazan’s conduct left the tribunal “distinctly unimpressed … he is supposed to be knowledgeable and experienced in property management practice in a way that cannot be expected of the residents”.
Judge Nicol noted the lack of evidence of a functioning CCTV network at the site, adding “it is impossible to see how anyone could sensibly have concluded that the appropriate response to such difficulties would be not to secure the car park but to turn it public”.
As a result of this finding, leaseholders are owed credits worth 50 per cent of the £5,074 charged for CCTV operation between 2014 and 2019.
Observing how the increased footfall, problematic behaviour of car park visitors and the management’s unresponsiveness to leaseholders brought into doubt the reasonableness of Y and Y Management’s fees, the Bridge Court leaseholders were also awarded a reduction of £48,418.
Block Cleaning Limited, the contractors responsible for clearing up the mess, were found by Judge Nicol to have had a challenging job due to the freeholder “inviting the public onto an estate that was already struggling with the impact of outsiders and their anti-social behaviour”.
In any case, the leaseholders’ documentary evidence of poor cleaning standards secured them rebates of 50 per cent.
In an observation that could apply to the leasehold system in general, the ruling said:
“The Respondent [Mr Moskovitz] has never suggested that they should make any contribution to such maintenance costs from their car park income.
“This results in an arrangement by which the Respondent receive 100% of the profits from the public car park while the lessees bear 100% of the cost of maintaining that car park and any area affected by users of the car park. This is patently inequitable …”
The case is instructive for flat leaseholders suffering remote management, particularly those who feel their development is under siege from car park intruders or party goers using Airbnb and short-term lets.
The ruling can be read in full here: BridgeCourtCarparkOct2021