ALEP
Professional help in theformofa solicitor, barrister, surveyor or valuer may be necessary
Ent
costs is limited, this will often work in favour of thelandlord rather than thetenant. The tenant’s leasemay provide that the landlord can recover the cost of legal proceedings either directly fromthetenantorvia theservice charge, so that,evenifthe tenant is not ordered to paycostsbythe FTT, thelandlord canrecover hiscostsunder
thelease.The tenant,onthe otherhand, has no such option. Mediationisagood alternativetotribunal
proceedings, if other attempts to settle thedispute have
failed.The Leasehold Advisory Servicehaveinformation about whatmediation involves and howto find a mediation service on their website at:www.
lease-advice.org.uk. Anotherimportant pointisthis: priorto
making an FTT application - and in fact, prior to considering any form of dispute resolution–itisvital to take arealistic view of thestrengthofyourcase.Where theissue relatestoservice charges,readthe lease, read therelevantstatutory provisions and considerwhetheritisnecessary to take some
advice.Again,the LeaseholdAdvisoryService is a good port of call. The Citizen’s Advice Bureaumayalsobeabletohelpand if thecase involves any complicated legal, valuation or surveyingissues,thenprofessionalhelpin the form of a solicitor, barrister or surveyor/
valuermaybenecessary.Itremains to be seen what will be regarded as “actingunreasonably in bringing, defending or conducting proceedings” forthe purposes ofmaking a costsorder underthe newFTT rules. However, bringing or defendingacasewhere youhave no hope of succeedingmay well be regarded as unreasonable and could be costly.
Flat Living Issue 17 Whileconsidering themeritsofthe caseand
priortobringinganapplication,yourcasemust be
formulated.Itisnotuncommon forboth landlordsand leaseholders in servicecharge disputes to viewtheTribunalasanoracle, to whichtheyask:whatshouldthe servicecharge be?Whilethe FTTisanexperttribunal, its functionis to decide betweentwo competing cases, not to do itsownresearchand comeup with itsownfigures. For example, a leaseholder is charged £2,000 forthe replacementof windows, thinks this is toomuchandmakes
Bringingor defending acasewhere youhave no hope of succeeding maywell be regarded asunreasonableand couldbe costly
an applicationtothe FTTforadetermination of reasonableness. It is not appropriate simply to saytothe FTT: please tellmewhat areasonable figureis; theleaseholdermustformulate his case.Hemust say, for example,mycase is that £2,000 isunreasonable and that £1,500 is a reasonable figure - and saywhy. Thismight be becausehebelieveshecould have gotthe same quality ofwork done morecheaply or because theworkisnotworth£2,000. Thenextstepis to considerwhat evidence will be needed to prove the case. Canthis be done by obtaining
comparativequotes?Will expert evidence be needed as to thequality and/or cost of the works? If this is done before thecaseisbrought, it willmake the procedure before the FTT a lot smoother.
StArtingprocEEdingS So thecasehasmerits,ithas beenformulated andconsideration has been giventohowit will be proved.Whatnext? Thenextstepisto obtain the relevant formand complete it. It is important at this stage to read rule 26 -Starting Proceedings, and check the provisions of any relevant practice direction,whichapplies to the
case.Aneasy place to find the relevant forms, rules and practice directions iswww.
lawandlease.co.uk.Once the formis completed and filed with the FTT, a hearing date for a casemanagement conference will normally be given. This is notahearing to decide thecase, merely to decide howthe case will proceed. Knowingwhat evidence you intend to rely on will help at this stage. For example, if you know that youwillneed expert evidence,thenask the Tribunal tomake a directionin respect of such evidence. You will need to comply with the directions the Tribunalmake at this hearing, so if you are ordered to do anything you do notunderstand, ask for clarification and if you think that you are being asked to do somethingwhichyou do not think you will be able to do in thetimeallowed,thentellthe Tribunal
andtellthemwhy.The directions you receive fromthe Tribunal are your guide to the proceedings; so read them, notewhat you have to do andwhen, and off you go!●
Ellodie gibbons isaBarristerwithtanfield chambers 49
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