Surgery Guidance Directory


Findanagent


50 52 54 56


Communalclutter


QUESTIONThe entrance hall of our block is reasonably spacious and somepeopleleave their bikes, pushchairsand evensometoysthere. Themanaging agent initially said they would get it sorted but then said they might be accused of theftand as long aswecanget to andfromourflat without hindrance, that is allright. It is not. It is untidy,unsightly, somethings are actually stacked on top of others, andIdonot seewhy somethingcannot be done about it.


ANSWER It is easy to laydownlines of acceptable and unacceptable behaviour. But, a mumonthe top floor with herfirst newbaby? An unexpected accident requiringawheelchair? Deliverymen? Builders? Sometimesthe obvious lines get a bit blurred. This is ablock of flats inwhichneighbours need to be neighbourlyonboth sidesofany issue,not


Unfair decision?


QUESTION In ourblock of flats,one of the lessees challenged someof the servicecharge expenditure as having been unreasonably incurred. The Tribunal agreed andgaveadecision whichresultedinthe landlord paying back to that lessee someof hisservice chargemonies. Alot of other lessees then askedthe landlord forthe same reimbursement but he refused, saying that the only person he hasto reimburse is the applicant in the case whichcamebeforethe Tribunal.That surely cannot be right?


ANSWERRegretfully it is.InOctober of this year, a decisionwas issued by the Upper Tribunal on appeal fromthe First- Tier Tribunal (FTT)inacaseconcerning SamuelsTowers, Long Hill Avenue, Chatham, Kent.One lesseewhoowned two flats at Samuels Towers challenged theservice charges andclaimed that whateverwas found to beunreasonable should be reimbursed to theservice charge accountfor everybodyand notmerelya credit be givento himself. That argument was rejected and theUpper Tribunal determined that the jurisdiction of the Tribunal is limitedtodetermining the


Flat Living Issue 17


amount payabletothe applicantunder Section 27Aof the 1985 Act. The Tribunal does nothavejurisdictiontoconsiderthe effectofthatdetermination on theother leaseholders.Those otherleaseholders must look towhatever remedy theymight have availabletotheminthe lightof theTribunal’sdecisionfor theapplicant lessee.Thatmay provealittleproblematic becauseifanother applicationisreceived on thesameissues,the landlord is likely to try to defend himself by saying that the Tribunal does not have the jurisdiction to hear a newcase on amatter that has already beendetermined. Tenants who have already paidmight try and withhold;the landlordmighttry and sue for recovery; the tenantswho are withholdingmight seekmediation; the mediationmight not prove successful; theCountyCourt Judgemight have to deal with it...........howmuchmoney is each party prepared to spend on this? Canthe landlord dumphissolicitor’s fee costs on the service charge account?Will that triggeryet anotherapplication to the Tribunal?Myadvice: find someother way of resolving your arguments without spending disproportionate sumsofmoney on litigation.●


an authoritarianinstitution inwhich unbreakablerules need to be vigorously enforced,nomatterwhatmitigating circumstances exist. If there is somewhere at your block


whereastore couldbeformed, your managing agent’s contribution could be to progresssuchaproject. Residents who have a choice, should take their belongings to theirflat:thosewhohave no choice, might need somehelp or short- termtolerance.Anowner of an article which is no longer in regular use, should accept that itmust be scrapped or sold, and remove it. But, if it comes to ashowdown,the leasewill set out: the included rights and the excluded rights.Itwould be surprising if there is an included


If it comes to a showdown, consultyourlease


rightallowingresidents to store theirbelongingsinthe common parts and equally surprising if thereisnot an excludedright or regulation to keep thecommon partsfreeofall obstructions at alltimes.Themanaging agentshouldapply thelease terms just as all residents should comply with them, andenforcement action can be taken if necessary.●


Car parking


QUESTIONThere has been a car on one of our visitor’s carspacesfor overthreemonths. Nobodyknowswho it belongsto.Twoweekends agoitwas vandalised.Weaskedthemanaging agents to do something about it.Hesaid he could not, by law.What canwedo?


ANSWERYourmanagingagent is referringto the Protection of FreedomsAct 2012,section 54.Itisan offence (thatmeans a crime) to remove amotorised vehiclewithout lawful authority. If it sounds a bit like aMonty Python sketchwhen JohnCleese returned to thepet shopwith thedeadparrot, the“used to be a parrot”, the “oncewas a parrot”, then be reassured: there aremany peoplewith similar ideas.The Act defines “motor vehicle” as “…amechanically propelled vehicle oravehicle designed or adapted fortowingbya mechanically propelled vehicle.”Nowtellme:can yousee a judge being satisfied that the vandalised “oncewas acar”sittingin your visitor’sparkingspace fitsthat definition?Theclaimantmakingout that itwas, at the date of removal, amechanically propelled vehicle, and the defendants submittingthat themechanical propulsionwas fatally and forever disabled by vandals priortoremoval fromthesiteandwhat’s left had ceased to be capable of transporting people or goods (see dictionary definitionof “vehicle”).A“motorised vehicle”suggeststomethatitiseitherinworkingand roadworthy conditionor, if not, it canbe repaired at acostwhichisreasonablecomparedtoits valueasa roadworthy vehicle. For instance,would an insurance loss adjuster call it aright off?Isitright to call it a motorised vehicle one yard outside the scrapyard gates and a pile of scrapone yard inside those gates? Orwas it a pile of scrapas soon as the vandals had finishedtheir transformation?TheAct does nothelp either youoryourmanagingagent toknowwherethe defining line falls betweenamotorised vehiclewhich cannot be lawfullymovedandsomethingelsewhich, at the date of removal,was not amotorised vehicle. Afully reasoned decision fromahigherlevel court wouldbehelpful.You askedwhatyou cando. If it is amotorised vehicle: apparently nothing. If it is nota motorised vehicle: remove it.●


What is the definition of a “motorised vehicle”? 51


Ifyouhaveaquery, email it to


info@flat-living.co.uk


Allnamesand addressesare withheld


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