LVT Practice & Procedure

1. www.lease-advice.org LVT Practice & Procedure Liz Gibbons Community Housing Cymru Group Leaseholder Network Meeting 19th May 2014

2. www.lease-advice.org 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)

3. www.lease-advice.org 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

4. www.lease-advice.org Statutory authority • Landlord and Tenant Act 1985 • Housing Act 1996 • Commonhold and Leasehold Reform Act 2002 • Leasehold Valuation Tribunals (Procedure) (Wales) Regulations 2004

5. www.lease-advice.org 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

6. www.lease-advice.org 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

7. www.lease-advice.org 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

8. www.lease-advice.org 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

9. www.lease-advice.org 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

10. www.lease-advice.org 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

11. www.lease-advice.org 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)

12. www.lease-advice.org 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

13. www.lease-advice.org 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

14. www.lease-advice.org Hearing panel • Three person panel • Surveyor • Lawyer • Lay person

15. www.lease-advice.org Tribunal procedures • Reg 14(7)(a) • Preliminary matters • Jurisdiction etc • Applicant evidence • Respondent evidence • Closing statements • Costs matters

16. www.lease-advice.org Hearing procedures • Tribunal is part-inquisitorial • Expect questions • Read statements • Reserved decision

17. www.lease-advice.org 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

18. www.lease-advice.org 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

19. www.lease-advice.org 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?

20. www.lease-advice.org 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

21. www.lease-advice.org 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

22. www.lease-advice.org 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

23. Questions? The Leasehold Advisory Service 020 7383 9800/02920 782222 info@lease-advice.org www.lease-advice.org Maple House, 149 Tottenham Court Road London W1T 7BN/c/o Care & Repair Cymru, 2 Ocean Way, Cardiff, CF24 5TG