LVT Practice & Procedure - Community Housing Cymru

Report
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LVT PRACTICE &
PROCEDURE
Liz Gibbons
Community Housing Cymru Group
Leaseholder Network Meeting
19th May 2014
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Dealing with a failure to pay the
service charge ?
• Failure to pay a valid service charge demand amounts to
a breach of the terms of the lease
• Is there a penalty provision?
• Generating an administrative charge
• Interest on arrears
• Charges for chaser letters
• Costs of enforcement recoverable from the leaseholder
• How to claim
• Summary of rights and obligations for administrative charges
• Writing to the lender?
• Which forum?
• County Court vs Leasehold Valuation Tribunal (LVT)
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LVT vs County Court
• Concurrent jurisdiction of both to deal with non payment
of service charges and look at reasonableness
• Pros of court
• Better for the landlord?
• Speed - efficiency
• Better position for landlord on costs?
• Scary for the leaseholder
• Generalist forum
• Ability to seek transfer
• Pros of LVT
• Better for the leaseholder?
• Better position for leaseholder on costs?
• Specialist forum
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Statutory authority
• Landlord and Tenant Act 1985
• Housing Act 1996
• Commonhold and Leasehold Reform Act 2002
• Leasehold Valuation Tribunals (Procedure) (Wales)
Regulations 2004
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Completing the application form
• Enough but not too much
• Use standard forms provided by LVT where available
(See: Welsh Residential Property Tribunal website)
• Reg 3(8)
• Failure to comply may be dispensed with or relaxed if particulars
and documents are enough to enable the application to be
determined and no prejudice will, or is likely to, be caused to any
party to the application
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Particulars of application –
service charges
• Recognised tenants
association
• Brief description of
relevant property
• Copy of the lease
• Service charges
• Past, current and future years
in question
• Dates to avoid
• Experts
• Witnesses
• Paper hearing/track
preference
• Section 20C
• Justification
• Venue requirements
• Statements of truth
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Who serves documents?
• Reg 5
• Respondents
• Secretary of RTA
• Where service charges
• Notice
• Any person who the LVT considers is likely to be significantly
affected by the application
• Any other person the LVT considers appropriate
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Pre trial review
• Reg 12
• 14 days notice
• Be prepared!!
• Identify areas of agreement/disagreement
• Consider appropriate directions
• Witness statements, expert reports, seeking disclosure, skeleton
arguments, Scott Schedule, bundles preparation
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Pre trial review
• LVT is under an obligation to
• Give any direction that appears necessary or desirable for securing
the just, expeditious and economical disposal of proceedings
• 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 PTR any such admission or
agreement or any refusal to make such admission or agreement
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Adjournments or postponement of
hearing
• Reg 15
• Presumption against adjournment or postponement save
where LVT considers it is reasonable to do so having
regard to
• The grounds for the request
• The time at which the request was made; and
• The convenience of the other parties
• Reg 16(2)
• Production of new document at the hearing
• Presumption of an adjournment
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Striking out / dismissal of
applications
• Reg 11
• Frivolous, vexatious or otherwise an abuse of process of
•
•
•
•
•
the LVT
Application by Respondent or LVT’s own initiative
Notice
LVT minded to dismiss application
Grounds on which they are minded to do so
Date before which the applicant may request to appear
before and be heard by the LVT on the question whether
the application should be dismissed (21 days)
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Bundles
• Applicant prepares
• Unless otherwise agreed
• Typically six copies
• Three for panel
• One for witness
• One for respondent
• One for you
• No later than seven days before hearing
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Bundle contents
• Include
• Application
• Statement of case
• All parties
• Leases
• Or typical specimens
• Accounts concerned and any supporting documentation
• Expert’s reports
• Other evidence on which either party might seek to rely
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Hearing panel
• Three person panel
• Surveyor
• Lawyer
• Lay person
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Tribunal procedures
• Reg 14(7)(a)
• Preliminary matters
• Jurisdiction etc
• Applicant evidence
• Respondent evidence
• Closing statements
• Costs matters
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Hearing procedures
• Tribunal is part-inquisitorial
• Expect questions
• Read statements
• Reserved decision
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Things to remember
• Short opening statement is welcomed by the panel
• Address chair as ‘sir’ or ‘madam’
• Rules of evidence do not apply
• No rules on rights of audience
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Evidence – without it, case can be
dismissed!
• No rules of evidence
• Continued cross examination
• Leaseholder needs only to establish a prima facie case
• Yorkbrook Investments Ltd v Batten (1986) 18 HLR 25 CA
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Evidence - service charges
• Consider checklist
• Lease
• Service charge demands
• Evidence of admissions
• Consultation (s20)
• Response to requests for information (sections 21/22)
• Reasonableness
• Section 19
• Expert reports?
• Comparisons?
• Photographs?
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Post hearing
• Reasons for the decision - recorded in a document asap
• Correction of slips/clerical mistakes
• Enforcement
• Determination may be enough
• If not, register decision at County Court
• CPR 70.5 and CPR PD 70
• Can be made without notice
• Court form N322A
• Name
• Address
• Amount unpaid
• Copy of LVT decision
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Appeals - timing and practicalities
• Apply to the LVT for permission
• 21 days from receipt of reasons
• Requests for more time within the 21 days
• Application to the UT for permission
• 14 days from LVT refusal
• Can request more time with reasons
• Urgency direction
• can be reduced
• If permission granted
• Notice of appeal and documents to be filed within 28 days
• Upper Tribunal Practice Directions
http://www.justice.gov.uk/tribunals/lands/rules-and-legislation
• Own rules as to costs
• If not - Judicial Review - exceptional circs
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Appeals - grounds
• UT PD 4.2
• LVT wrongly interpreted/applied the law
• LVT wrongly applied or misinterpreted or disregarded a relevant
principle of valuation or other professional practice
• LVT took account of irrelevant considerations, or failed to take
account of relevant consideration or evidence, or there was a
substantial procedural defect
• The point(s) at issue of potentially wide implication
Questions?
The Leasehold Advisory Service
020 7383 9800/02920 782222
[email protected]
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Maple House, 149 Tottenham Court Road
London W1T 7BN/c/o Care & Repair Cymru, 2 Ocean Way, Cardiff, CF24 5TG

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