WHAT IF PROBLEMS PERSIST?

Suppose you have an owner who does not pay service charges – in spite of many reminders. Or an occupant who continues to play loud music, leaves rubbish and rubble in common parts or undertakes renovations without getting relevant permissions.

What action should you take then?

Unpaid service charges

This is one of the commonest problems of all, and just about all blocks of flats will have at least one persistent non-payer in their midst. Most managing agents have a policy of dealing with this which is: they write two letters, then if there is no response, contact the mortgage provider. Otherwise, the next step is court procedure. This is another very good reason why it makes sense to have the block properly managed by outside agents. Interest is also added onto late payments, at, typically, five per cent over base.

Otherwise, if there are no managing agents, first of all try to discover why these charges are unpaid. Sometimes residents withhold charges as a ‘protest’. Most often the reason is that they are short of money and can’t pay. But it is human nature to bluster and protest and make out it is somebody else’s fault.

Sometimes there is a genuine cashflow problem and very often, the best solution here is to work out a method of payment with the leaseholder which will be satisfactory to both parties.

If the charges are challenged, as they often are, and result in much paperwork flying back and forth, the judge may well order the case to be heard by a LVT, who will adjudicate on whether the charges are ‘reasonable’ and must be paid.

Then you will have to go back to court to get the charges actually paid, and the judge could order that they are paid in small instalments of, say, £5 a month, depending on the debtor’s circumstances. You cannot get blood out of a stone, as debtors will often allege.

Persisting with non-payers can be a long, drawn-out process requiring much stamina and energy, but residents must not imagine they will be allowed to get away with unpaid charges. It is extremely difficult to win forfeiture of the lease, but in extreme cases, this is the last resort.

In most cases, the debtor will realise he or she is living above their means, and sell the flat. Any unpaid charges must be settled before completion of the deal, though.

More worrying is the situation whereby some residents refuse to pay an extra levy for building works, or maintain that they cannot afford to pay. This frequently adversely affects the building, as major works are only carried out when necessary.

No builder or contractor will agree to start the work unless they know they will be paid for it. Sometimes it can take up to a year to collect all the money due from levies, by which time the works may have to be re-quoted for, and costs will have risen.

If the non-payers persist, the best thing is to take advice from the non-profit making Leasehold Advisory Service, or to get a solicitor to serve an injunction. If the charges are disputed the case may have to be taken to the LVT anyway.

Persistent loud music

This is one of the very worst problems but, in a way, it is the easiest to address, as there are now laws preventing the playing of loud music to the annoyance of others.

The best approach here, after writing directly to the offender, is to contact the local council who will also write, warning the recipient that action can be taken. In any case, whatever the lease might say, you are not allowed by law to play loud music after 11pm.

The local council, which has a duty to prevent noise, will not reveal who has complained, but has powers to remove the musical equipment causing the noise.

Sometimes residents do not realise just how much noise carries in a block of flats, and will make sure the music is turned down, when this is politely requested. The thing is, nobody likes listening to other people’s music and this must be respected in a block of flats.

Anybody who wants to hold an occasional party, where music may be played later than 11pm, should write to residents and offer to turn down the music if it is too loud. Another tactic is to invite all residents to the party who may be within hearing.

Flooring

Most leases state what kind of flooring is to be used in individual units. Some leases say that floors have to be carpeted – with the exception of bathrooms and kitchens – others that there must be adequate sound proofing.

The trouble is that although many leases state that flats should be carpeted, wooden floors are more desirable. You can now get thick sound-proofing when fitting wooden floors and this should always be done. Otherwise, to those living below, it sounds as though you are clomping across the ceiling in hobnail boots.

In Victorian days, noise was less of a problem because floors were carpeted, windows had thick velvet curtains, and surfaces were sound-absorbing. With contemporary design, everything is noisy hard floors, granite worksurfaces and limestone floors are all noisy. Also, most people put blinds rather than curtains up at windows. All of these enable noise to richochet round the flat, even without loud music playing.

Before ever embarking on a redesign, check that your choice of flooring or worksurfaces does not make the place noisier than before.

Pets

Most, if not all, modern leases state categorically that pets and animals are not allowed. According to the Federation of Private Residents’ Associations, this is the clause that is most often ignored. But pets are banned for very good reasons: dogs may bark, and cause immense nuisance to other residents; cats can smell and it can be difficult to organise cat flaps, litter trays and so on in blocks of flats.

In my block, the lease stated that residents could have ‘small domestic pets’ only. This prompted one new owner to bring in a couple of Great Danes. Of course, as soon as this owner appeared to be getting away with it, other people brought in dogs – a couple of yappy Yorkshire Terriers, a Rottweiler and others of less certain pedigree. Another owner brought in a parakeet, which got stuck in the lift, occasioning not only huge panic, but enormous expense and inconvenience.

The problem is, pets are anti-social in blocks of flats. If a resident has brought in a pet in contravention of the lease, the managing agents must write, confirming that pets are emphatically not allowed and that the animal must be rehomed. This policy must be strictly adhered to. In fact, if anybody brings in a pet, all residents must be circulated with the information that pets are not allowed, and that the offender either has to sell their property or get rid of the pets.

Humans are very attached to their pets, but rehoming must be insisted on, otherwise the place will become overrun with animals. And your beloved pets are other people’s nightmares.

Forfeiture of lease

This is often held out as a terrible threat, but in reality forfeiture is extremely difficult to do. You have to serve a Section 146 notice on the offender but because of abuses in the past, where landlords served these notices for non-payment of trivial sums, or to evict people for not paying ground rent when this had not been demanded, the law has been amended since February 2005. It now states that you can only serve a Section 146 notice if the leaseholder has admitted a breach, or this has been admitted at a LVT hearing. Or, they have owed a sum exceeding £350 for more than three years.

Otherwise, you have to take them to court. Leases can be forfeited for a number of reasons, such as persistently unpaid service charges and wilful flouting of the terms of the lease (e.g. playing loud music and leaving rubble and rubbish in the common parts). Although it has become difficult to serve a forfeiture notice, it is not impossible, and can be reserved as the ultimate threat, bearing in mind that if the lease is forfeited, the leaseholder loses everything.

Some experts believe that forfeiture of the lease is medieval and unjust. They recommend that, instead of this extreme action, the offender should be forced to sell their property and be allowed to keep the proceeds after all debts and outstanding charges have been settled. This seems fairer than forfeiture, and could be a much more workable solution.

What could happen here, if such a law were brought in, is that the offender would receive a letter from a solicitor saying that because of persistent breaches of the lease – of which they will have been previously warned – the freeholder has no option but to force a sale, and will be putting the property up for sale after a market valuation.

This would have the effect of removing the offender, but leave them with enough money to buy somewhere else. It is a law that could easily be enforced, but so far, no such law exists.