April 28, 2017

Should the RTMF take Elim Court’s flawed right to manage application on to the Court of Appeal?

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Should a retirement site really be fighting for right to manage in the court of appeal?

Should a retirement site really be fighting for right to manage in the court of appeal?

Carlex / LKP has serious concerns about events at Elim Court in Plymouth, whose right to manage application failed on appeal last month.

The application is being handled for the residents by the Right To Manage Federation, headed by Dudley Joiner, which has repeatedly stated that it is assuming all legal costs in the matter.

The RTMF now proposes to take this application, which has failed twice, on to the Court of Appeal, it stated on its website yesterday.

The residents are to meet with Mr Joiner next Wednesday to decide whether to approve this course.

At this point Carlex has to ask: is continuing this action in the best interests of the residents?

Or, is the action being continued because the RTMF is facing significant legal costs from the freeholder – which we roughly estimate at £25,000 – for the two failed court actions? Only by winning will it avoid the costs.

Should this gamble be taking place, with the risk of serious consequences for the RTM members of Elim Court (in fact, all the leaseholders) – explained below – who with the freeholder are the other party in the dispute?

It is painful for Carlex to raise these questions: the RTMF has taken 70 retirement sites to right to manage and around 250 in total. We have in the past recommended that leaseholders use its services, most recently at Brixton Hill Court which won right to manage thanks to the RTMF after the first effort was an expensive failure.

Hundreds of leaseholders have cause to be grateful to the RTMF Limited, which with RTMF Services Limited and Team property management form part of Mr Joiner’s interests in leasehold.

At Elim Court, what began as a right to manage application in the lower tribunal now risks becoming major-scale litigation where the costs could be open-ended.

Costs for actions in the Court of Appeal can start at around £20,000 for each side and could escalate. It would be a big bill if the leaseholders are unsuccessful. Then there is the possibility that they win, but the freeholder takes the matter on to the Supreme Court and is finally successful.

Carlex does not dispute the good intentions of the RTMF in taking up Elim Court’s right to manage application at minimal upfront cost (it receives more substantial payment when RTM is successful from the new incoming managing agent in the form of commission).

Carlex also fully shares the outrage of most fair-minded people that a simple right to manage application can be successfully frustrated on the most trifling grounds. The RTMF made mistakes in the Elim application, but there is no doubt that the majority of the leaseholders living there want the right to manage that Parliament gave them.

The choices the Elim residents face are these

Drop the action

This means accepting defeat and paying Avon Freehold’s costs. These were £12,600 in the lower tribunal and are unlikely to be any lower for the upper tribunal.

These costs of roughly £25,000 might be reduced a bit by a court, but they will have to be paid.

The RTMF has said it will pay all the legal costs in this action. But if the leaseholders reject its advice to take the matter on to the Court of Appeal, will it still feel an obligation to do so?

We do not know and the agreement is imprecise.

Mr Joiner criticised Carlex for raising this issue on October 12 in a comment on our website. Carlex had “raised unnecessary fears in the minds of Elim residents who have already been given assurances the costs will be paid by RTMF”, he said.

We do not agree. If the RTMF expects residents to support its continuing litigation, the conditions on which they do so must be clearly understood, drafted by an independent lawyer, involve secured cash or property (see below) and be legally binding.

Carry on litigating, as the RTMF advises

The possibility of further defeat and more costs has been addressed, as has the possibility of victory and eventual defeat in the Supreme Court.

Of course, it is equally possible that the RTM is eventually won.

That would be a very desirable result for all of us who campaign on leasehold issues, with senior judges at last addressing the issues surrounding right to manage.

But it is far less clear that this is in the interests of the residents of Elim Court.

Had they scrapped this flawed right to manage application after it failed the first time in January 2013, they could have started another – or, perhaps better in this case, asked for a court-appointed managing agent – and they could have been rid of their freeholder’s management a year ago.

Curiously, the Court of Appeal is shortly to consider “90 Broomfield Road” right to manage, which is being fought on the issue of a multi-block site qualifying for RTM. But this is a battle over an important point of law. At Elim Court the appeal would be an attempt to reverse a decision on a right to manage application that two tribunals have agreed has basic flaws.

In the event of failure, the freeholder’s legal bill will be first directed to the directors and members of the Elim Court RTM Co Limited, which has no assets.

It will be their liability. It is not a concern of the freeholder, or the court, that an agreement exists for the RTMF to pick up the other side’s legal bill on behalf of the residents.

But what if the legal bill is so large that the RTMF goes into liquidation?

What if the RTMF ceases to exist for any other reason when this matter is concluded?

Carlex’s concerns about the RTMF’s repeated, breezy undertaking to pay the legal costs – no matter how high – first surfaced in January 2013, after Elim Court lost its case in the lower tribunal and it was resolved to continue that application with an appeal.

Carlex offered to try to obtain free barrister assistance through sympathetic MPs, as at Oakland Court in Worthing. But the RTMF rejected this as it was confident of eventual victory and it was “our case”.

Carlex / LKP has sought advice on the dilemma facing the Elim residents, and offers these thoughts:

1/ They should not agree to continue this litigation at the open meeting on Wednesday, but to insist on time to consider the issue carefully. A week, or several, is required.

2/ If this legal action continues, the residents should insist on a legally enforceable agreement with the RTMF, drawn up by lawyers.

3/ It is very important that this should include the RTMF putting forward a substantial secured sum of money, or asset, sufficient to pay all the legal costs of both sides in this case.

4/ The meeting on Wednesday should include all leaseholders, not solely the members of the RTM. If the nightmare scenario occurs – the freeholder wins, the RTMF goes under – the Elim Court RTM Co Ltd will also fold as it has no assets. It is very likely that a freeholder, in these circumstances, would be able to obtain its legal costs from all the leaseholders.

5/ The directors of the Elim Court RTM need to consider their position carefully, if they decide to continue this action.

It is easy to see why leaseholders have turned to the RTMF – and similar “free” or low-cost right to manage facilitators – who offer a simple right to manage service that appears to be free of risk.

But behind these offers is the assumption that the right to manage application will always win.

And most are won. Only a small minority of RTM applications actually involve court action. Of these, most have eventually ended in victory for the residents.

But at Elim Court the RTMF’s luck has run out.

The case also demonstrates the downside of using these supposedly low-cost services against a freeholder determined to resist right to manage.

Left to their own devices, the Elim residents could have hit the brakes after the first application had failed, paid the freeholder’s legal costs and started again.

If they do decide to follow the RTMF’s advice to fight on to the Court of Appeal and (possibly) beyond, then it is Carlex’s duty to alert them to the potential risks of doing so.

The full ruling the upper tribunal on Elim Court RTM can be read here:

http://www.landstribunal.gov.uk/judgmentfiles/j1072/LRX-25%2081%20%2087-2013.pdf

Comments

  1. Michael Hollands says:

    I hope that the CMA read this article and take note.
    This sort of situation should be considered in their Inquiry

  2. I too feel there is always a rush to go to a tribunal by RTMF when an RTM application is refused by the landlord. There is another approach which is to withdraw the application, address the landlord’s concerns, and start again. It is tiresome to do this, but less costly than immediately going to tribunal. I am surprised more RTM applicants don’t use this tactic. Many, including RTMF, seem to want their day in court. Perhaps this looks good in terms of their publicity.

    The mistakes that lead to the claim being rejected by the Upper Tribunal were very basic. Rather than rely on the “two hours/three days” requirement, send a copy of the Mem & Arts to each leaseholder. With regard to one flat having equity release, this is quite common on leasehold flats and RTMF should have known this. The equity release charge is shown on the lease title document.

    With regard to the five “thoughts” you mention, you should add a sixth. RTMF should be required to offer up a set of their latest accounts (full set, not abbreviated ones that appear on companies house website) to show they are financially viable and can afford to pay the legal fees. A legal agreement is no use if there are no assets to the company. RTMF have often been late submitting their accounts and this may (or may not) indicate a problem. Or perhaps Mr Joiner may be prepared to offer a personal guarantee?

    My gut reaction would be for the Elim leaseholder to stop now and try and fight the landlord on reasonableness, but this is also a mindfield. I feel very sorry for them.

    • Michael Epstein says:

      Insider,
      By taking the course of action you suggest, by addressing all the objections of the freeholder to the RTM action, you deny them the opportunity of raising further objections at a subsequent RTM.
      You also deny the freeholder the time they want to further fleece the leaseholders before the RTM goes through. All things considered, it is better to rectify a faulty RTM action than proceed through to the High Court.

    • Michael Epstein says:

      Insider,
      You make mention of equity release taken out on flats. It may be of interest for those planning on buying a retirement property with the aim of taking up an equity release option that in large part to the catastrophic falls in retirement flat values, it is becoming all but impossible to obtain such a policy.

      • Regardless of what you say, a competent RTM applicant should check the title on all the leasehold flats and also check the freehold title for any mortgages, charges etc. It is not just equity release. There are all sorts of weird and wonderful “help to buy” schemes out there in retirement developments, many of them historic. “Home for Life” “Lifetime interest” “Buy now, pay later” “Equity Share”. You name it and the industry has probably done it and all leave a charge on the property concerned.

  3. In general terms the insolvency of an RTM poses no real risk or affect on directors or members if they have go into liquidation or enter into an CVA, as long as they haven’t broken the rules, and they want be said to have traded while insolvent as they have an assurance on the fees from RTMF.

    I agree that the terms of the document must be in a deed and Elim Court RTM ought to take independent advice on the claim flaws and on the agreement, as well as a claim on RTMF’s indemnity insurance, which it does have, doesn’t it?, and of course their finances.

    For them its Hobson’s choice lose small or lose big and hope to salvage something.

    Where I disagree with Carlex in this matter is that the freeholder has been able to run up large costs disputing as the law intended a defective claim. The problem lies in, as determined by the UT, those mistakes and not the system as the errors are not trifling ones.

    There is nothing to stop them going for an 87 Act manager of course, if they have grounds to do so.

    As the greatest President of the Modern era of the USA once said ” Trust, but verify”

  4. Michael Epstein says:

    Without doubt this is a desperate situation that the leaseholders at Elim Court find themselves in.

    It is surely time for any RTM Company that is challenged by the freeholder to be given the opportunity to correct any flaws in the application that the freeholder objects to. In that way matters can be resolved before court action (unless it is a major difference between freeholder and leaseholder which does need a court direction).

    This would also mean that having stated their objections a freeholder would be barred from adding to the objections in court on the basis of a loophole discovered by a sharp barrister.

    Whilst acknowledging the very good work the RTMF has done, I do share the concerns of Carlex as to the issue of a conflict of interest between RTMF picking up a £25,000 bill, or fighting all the way with costs that could easily end up at over £200,000 with leaseholders being liable for the costs. Look at what happened at Battersea.

    • But notices and forms across the board in every sector can fail on the slightest error or assumption. The vast majority of RTM claims proceed with little hiccup and there is no point re-writing legislation to provide for a shred of a percentage point. The forms themselves and timescales are clear as as are the ones in this case that caused the error, and that lies with the professionals who got it wrong, and frankly should not have. They should have procedures in place for peer review before the forms go out the door.

      While I agree with the sentiment, the precedent that it sets is that it opens the door to abuses by leaseholders and landlords in these and other matters, and muddies the water with haphazard proceedings. How can parties let alone a court or FTT deal with matters when both sides spend most of the PTR or hearing with tippex?

      its sleep inducing at the best of times without those fumes too 🙂

  5. I have read Sebastian’s article and I am in despair. It is so full of inaccuracies and distortions that once again I am compelled to take up valuable time to reply.

    The article says that the RTMF now proposes to take Elim’s case on to the Court of Appeal. That is untrue. No such proposal has been made; no such decision has been made.

    Carlex and LKP are interfering in a complex legal situation and the public reporting of the matter at this point in time is not in Elim leaseholders’ interests. To do so while it is live before the court is potentially damaging as will become clear to leaseholders at the meeting next week. It is for situations similar to this that we have sub judice laws in this country.

    Exactly the same issues were raised when Regent Court, Plymouth sought RTM away from the same landlord. In that case the tribunal upheld the RTM claim despite the landlord’s tenuous objection that two leaseholders had not been served a notice inviting participation. The two leaseholders were the sons of a former resident who was deceased. The sons did not live at the flat. The flat was known to be empty. So the RTMF chose to send the notice to the sons’ home address rather than an empty flat. The Tribunal sensibly agreed that no prejudice had been caused and the technical failure should not be fatal to the claim.

    When the landlord appealed, some doubters questioned the wisdom of continuing as opposed to withdrawing the claim and starting again. The judgment the RTMF made at that time was that Avon Estates was a litigious landlord and if a fresh claim was issued in all likelihood Avon would pay its lawyers to find other loopholes through which it could obstruct leaseholder’s entitlement to RTM.

    Furthermore, in the Regent Court case there was an important and fundamental issue of law at stake that was of wider public interest and could potentially affect all other RTM claims. This issue, the key issue of the appeal, was whether a failure to comply with a statutory requirement is automatically fatal to an RTM claim. When it came before the Upper Tribunal, the President, Sir Keith Lindblom agreed with RTMF solicitor Margarita Mossop that this was not Parliament’s intention. In the face of persuasive jurisprudence including the Court of Appeal Decision in an immigration case known as Jeyeanthan, the President dismissed the appeal in favor of Regent Court leaseholders, who are now free from their landlords monopoly and enjoy life under a new management company of their own choosing.

    The President’s decision on this issue of law in the Regent Court / Avon Freeholds case was called into question and effectively reversed through the Elim Court appeal hearing. As recorded in the Judgment, ‘Mr Radley-Gardner (for the landlord) mounted a sustained challenge to the assumption underlining the Tribunal’s Decision in Avon Freeholds’. Whereas the President had determined, on the basis of Jeyeanthan, that a failure to follow RTM procedure to the letter was not necessarily fatal, the Judge in Elim, Deputy President Martin Roger, indicated early in the hearing that he did not agree or that the Jeyeanthan case was of general application. Throughout the hearing the Judge demonstrated clear bias and it was obvious he had already formed a contrary view. This was confirmed in the Judge’s written Decision. (The RTMF has filed a formal complaint about the Judge’s conduct of the hearing).

    As a consequence we now have two contradictory Decisions in the Upper Tribunal. Regent Court, where the President applied Jeyeanthan and a conflicting view in Elim Court, in which the Deputy President said Jeyeanthan did not apply. This leaves RTM practitioners and the First Tier Tribunals in a state of uncertainty. Where there is a deviation from procedure for common sense reasons, as in the Regent Court case, or due to an inadvertent failure due to ambiguity as in Elim, what course should be taken? The answer to this question is now left wide open until or unless the Court of Appeal finally determines it.

    The article asks ‘should this gamble be taking place?’ – The RTMF does not gamble. We make calculated judgments based on legal advice and our 10 years experience in handling right to manage. It is not a question of luck or a case of our luck running out, as the article alleges. That is insulting.

    If our business is operated in the cavalier fashion implied by the article why has Carlex/LKP recommended our services to leaseholders? Earlier in the year Sebastian referred the frantic leaseholders of Brixton Hill Court to the RTMF. Advised by a reputable local solicitor their RTM claim had repeatedly failed. They had incurred costs of over £20,000 and were desperate. When the RTMF became involved last August leaseholders were on their 12th RTM claim, which was also heading for failure.

    The RTMF agreed to take the Brixton Hill Case without any payment from leaseholders. It was not taken on as a gamble. It was taken on because in our professional judgment and on the basis of legal advice we believed the case could be made to succeed if the evidence was reassembled and properly presented. This calculated judgment proved correct and on 27th October 2014 Brixton Hill Court RTM Company finally acquired its right to manage and will soon be freed from their landlord’s voracious management monopoly. The managing agent Brixton leaseholders select will be asked to pay the RTMF fee of around £14,000 and these funds will go towards financing other ongoing claims including Elim Court.

    It is also relevant to mention that earlier in the year RTMF was approached by another retirement estate in Devon, Milton House, Newton Abbot. Milton House is also managed by Avon freeholds and unsurprisingly residents claimed poor service and overcharging as the reason for seeking RTM. We anticipated at the time we agreed to take on this case that it was likely to result in a contested claim before the tribunal. Despite the fact that we were unlikely to make any money from the case we agreed to take it on as a matter of principle.

    The Milton House RTM Claim Notice was served in April 2014, with 97% of leaseholders in support. True to form Avon Freeholds served a Counter-Notice alleging numerous procedural failures that it claimed prevented RTM, including a new allegation that the membership consent forms signed by residents were invalid because they had been signed before the company was incorporated. Fortunately the Tribunal saw through this cynical submission by Avon’s barrister Oliver Radley-Gardner, calling it ‘churlish’ and Milton House was granted the right to manage.

    The Carlex/LKP article says ‘The RTMF made ‘careless mistakes’ in the (Elim) application’. That statement is false and defamatory and I call upon Sebastian to withdraw it and apologize.

    If it was RTMF policy to take cavalier gambles for financial gain it is unlikely to have acquired RTM for 84 retirement blocks (not 70 as the article states) or achieved RTM for over 6,000 properties in England and Wales, including the biggest ever RTM case comprising 967 apartments. These successes are the result of diligence and attention to detail.

    The Claim against Elim Court is not the consequence of a ‘careless error’. We interpreted the statute in a way that we thought was correct. Another expert Tribunal had decided in another case that s.78(5) of the Commonhold & Leasehold Reform Act was ambiguous and chose to interpret s.78(5) in exactly the same was as did the RTMF. To choose one interpretation over another is not ‘a careless mistake’, it is a professional judgment one has to make. The reason we pursue the determination of such issues through the Tribunals is so that uncertainties and ambiguities in the law can be clarified for the benefit of all subsequent leaseholders seeking RTM who might otherwise face the same pitfalls.

    The Carlex/LKP article refers to another RTM issue that is going to the Court of Appeal. That is the issue of whether or not one RTM company can manage multiple blocks (the ‘Broomfield Road’ case). It is suggested that this issue is in some way different or of greater significance than issues we have been facing at Elim Court and Regent Court. It is not. All these issues are of equal significance. Admittedly the Broomfield case might be the ‘Beechers Brook’ of fences but horses can just as easily fall at any of the lesser fences and frequently do. Our mission is to remove all obstacles and uncertainties in the RTM process, big and small, in order to make it easier for all leaseholders to attain RTM as Parliament clearly intended. That is one of the stated goals of Carlex/LKP and it is disingenuous for Sebastian to criticize the RTMF’s faithful pursuit of the same objective.

    The Article states that a further appeal ‘would be an attempt to reverse a decision on a right to manage application that two tribunal’s have agreed has basic flaws’. This is a gross distortion of the facts. Out of 5 issues before the first Elim Tribunal we succeeded in 4. The 5th issue was not about a basic flaw. It was as I have said a matter of statutory interpretation.

    Carlex says it offered to get ‘free barrister assistance’ for the RTMF. This implies it lacked confidence in the RTMF’s legal ability. It therefore begs the question ‘Why has Carlex/LKP subsequently recommended the services of the RTMF in difficult RTM cases such as Brixton Hill Court if it lacks confidence in the RTMF and has such legal services at its disposal? Why has it stated that RTMF solicitor Margarita Mossop is a match for any barrister? Carlex/LKP says it has sought advice on the dilemma facing Elim Court? From what source is this advice and why is it not disclosed?

    It is relevant, particularly to costs, that the recent hearing before the Upper Tribunal did not only involve Elim Court. There were 5 RTM cases heard jointly to save costs and as a consequence of the same appeal hearing, leaseholders of 369 Upland Road and 65 Canadian Avenue have at last acquired RTM and freedom from the landlord company Assethold Limited, believed to be an associate company of Avon Freeholds. Furthermore, whatever the costs implications, they have to be shared by all parties, not just Elim Court.

    The article concludes by saying that it is Carlex’s ‘duty’ to alert leaseholders to the potential risks. How exactly does this duty arise? I am not aware of any relationship between Carlex and Elim leaseholders that gives rise to such a duty.

    On the other hand, the RTMF does have a duty to Elim Court and it takes this very seriously indeed. Unlike LKP/Carlex, the RTMF acts from an informed position. It does not give impulsive advice and in every decision it makes it puts the interests of leaseholders and RTM members first. To suggest that we are wavering from our mission in order to avoid paying costs is bordering on defamatory.

    The predominant duty that Sebastian/Carlex/LKP do have is the overriding duty to report the facts fairly, accurately and without distortion; and in this instance I regret to say they have failed miserably in that duty.

    Dudley Joiner
    Director
    RTMF

    • Michael Epstein says:

      Mr Joiner.
      Should the case go to the High Court and the RTMF lose (which could happen) and their is a legal bill of £200,000, can you tell me if you have the financial resources to meet those costs?
      If presented with a demand for £200,000, would the RTMF have to be liquidated? And if so, would the leaseholders at Elim Court become liable for the debt?

    • “The case is now heading to the Court of Appeal” is a direct quote from RTMF’s website. Does this not imply they have already made their mind up!?

      In his long and often rambling defence of his actions, Dudley Joiner does not mention picking up the tabs for the appeal or the financial situation of his company or why his company accounts are often very late. Elim resdients have a right to know these things. .

      I am also confused about the 87 “successful” RTM claims for retirement estates. I counted 57 on his web site.

    • Dear Mr Joiner,
      You appear to take up a lot of your “valuable time” in this reply in order not to address the concerns now facing the residents of Elim Court.

      You also decline to identify the abundant “inaccuracies and distortions” that you claim exist in the Carlex / LKP article.

      You say it is untrue for us to claim that the RTMF proposes to take this case to the Court of Appeal, but your own RTMF website says: “The case is now heading to the Court of Appeal.”

      It would appear that the RTMF has decided to take this matter on to further litigation before consulting the residents of Elim Court.

      It is certainly not sub judice for Carlex / LKP to discuss this issue, although I can well understand that you do not welcome the scrutiny.

      You also question why Carlex feels it has a duty to point out the risks of further litigation to the elderly and vulnerable residents of Elim Court. I suspect that this is a minority view.

      Although you name me repeatedly, it would be wrong to believe that this issue was not discussed before publication by the Carlex / LKP directors, and more widely.

      I note your statement: “Our mission is to remove all obstacles and uncertainties in the RTM process, big and small, in order to make it easier for all leaseholders to attain RTM as Parliament clearly intended.”

      Fine. But you should do that at your own risk and expense, rather than appealing a flawed RTM application for a retirement site which could backfire with very serious consequences.

      Yours sincerely,
      Sebastian O’Kelly
      Carlex / LKP

    • Thank you for putting the other side.

  6. Melissa Briggs says:

    In 2010, I was there as Carlex and gave the very first introduction to RTM presentation at Elim Court one morning, the very same day that I gave the same RTM presentation at another nearby block in the afternoon. Both of these blocks were at the time managed by Peverel and rising service charges were unsurprisingly of real concern. I introduced Dudley Joiner of the RTMF to both sets of residents who were very interested in the possibilities, but the two developments would go on to very different outcomes.

    For the residents of Elim Court this process, which they were told would be straightforward, transparent and would happen in manageable stages, must now seem to be never ending, anything but straightforward and could possibly cost a fortune if the wrong result materialises.

    There is a real possibility that if the appeal is lost the costs will escalate to such a level that the RTMF’s financial stability could be severely compromised. Taking the sensible advice previously offered by Carlex with regard to obtaining the services of a Pro Bono barrister would have been very wise. At one stage the Elim Court residents also had the chance to buy their freehold – in hindsight they probably realise this was an opportunity missed which has had serious repercussions.

    It is a great shame that the RTMF did not handle the initial application with their usual attention to detail, especially as there were some residents who were very nervous of proceeding despite the very difficult situation regarding the managing agents and the freeholder. However, the majority, quite rightly, were confident that achieving the RTM would substantially improve their financial circumstances.

    There is no doubt that obtaining the Right to Manage puts the financial reins firmly in the hands of the residents, and allows them to take control of the expenditure and control of funds raised via service charges. This is as long as they constitute the board members of the new RTM company, and do not allow it to be controlled by the new Managing Agent. This has happened in some developments as residents have withdrawn on the basis that they do not wish to take responsibility on behalf of others in their building. Indeed in one development, Dudley Joiner of TEAM Management (the RTMF’s other arm), is now running the RTM company of the block single handed as the other directors have all resigned.

    Have Elim Court considered bringing in a new RTM advisor (bearing in mind the fact that the 5 figure costs are mounting), to get a second opinion as to whether the appeal might succeed or fail, and what the outcome might be if the other side appeal against an RTMF winning appeal decision? In any event this is going to be a very drawn out affair and I feel great sympathy for the residents of Elim Court and their relatives who came forward to help with the whole RTM issue.

    • Melissa if as is understood this aroose from an error, and they happen, its a fact of life, I would imagine that RTMF have indemnity insurance and therefore excess aside, these costs should be recoverable, in principle, from them. That would not then affect the financial situation of RTMF.

      It is also a salutary lesson for those in RTM, RMC, OMC and RTE companies or the unicorn of property, the Commonhold Association, is to have Directors and Officers Insurance and legal expenses cover on that or the buildings policy.

  7. For reasons best known to Carlex my reply to the above article will not load onto this website. It is available on the LKP website in reply to the same article.

    Dudley Joiner
    RTMF

    • Anyone who makes a comment, and it does not appear, should contact me immediately: admin@carlex.org.uk.

      It is the updated versions of the spam filters not working correctly.

      Even a comment by Michael Epstein went into spam, although he has posted numerous times on this site and should be recognised as bona fide by the spam filters.

      In time, the filters should work correctly, and I do not know why they did not do so with Dudley Joiner’s comment. It worked fine with the http://www.leaseholdknowledge.com site, where Mr Joiner’s comment did appear without issues.

      Carlex / LKP get around 1,500 spam comments each every day.

      • Michael Epstein says:

        Linda,
        I know i promised to take you shopping on Saturday and i didn’t. You accused me of wanting to stay in and watch the football instead of loyally traipsing around every shop in the UK.
        You did not believe my denials. Now you have the proof that i was not making up an excuse. I was trapped in SPAM!

      • Well I hope thats actually 15 comments a day and the rest IS spam 🙂 I have seen 1500 comments in months, let alone a day.

  8. Keith Phillips OBE says:

    As many commentators will know, I am the Chairman of the Elim Court RTM Company Ltd. As such I take my responsibilities to the residents at Elim Court most seriously. As such, I have already ensured that ALL residents have a copy of the Carlex article and of the ensuing comments.

    I confess that my first reaction to all this was probably similar to that of the harassed taxi driver who when finding him or herself overwhelmed by numerous potential passengers, cries vainly, “get out of my taxi”.

    My second reaction was to sadly reflect that the only people smiling at it all are probably the freeholder, Avon Freeholds Ltd and his co-located managing partner Y&Y Management Ltd. They will be rubbing their hands in glee at the sight of the ‘enemy’,for I’m sure that is how they see us, taking lumps out of each other.

    My only compensation is that when opening their post this morning they will have seen a letter from Elim Court’s Resident’s Association’s solicitor which I wont prejudice by explaining further at this point. Suffice it to say that the smile, if it is there, will fade somewhat.

    As to what we do next, you can be sure that we will consider all these issues most carefully, including the need to take into account that the only people standing in the way of Elim Court’s claim is the freeholder and his business partner. That consideration will contemplate the implications of abandoning the fight and in doing so the likely reaction of the Freeholder and his business partner Y&Y Management.

    In considering the wider perspective, if anyone really wants to help, you can do either one or both of two things as I see it by either putting real pressure on politicians and others who actually perhaps make a difference and expediting the setting up a fund to meet the legal bills of fighting these cases!

    Otherwise I might be tempted to ask you to get out of my taxi.

    • Honestly, if it were me, based on what I have read here, I would have the RTM take legal advice on its position and the likely outcomes, as well as its exposure to any costs and the strength of the indemnity that you have before proceeding any further. That is especially true of the RTM itself as posted earlier as it is a delightful pyrrhic victory if costs are incurred against a man of straw, but more so about the RTM’s ability to continue trading with such potential costs about to be incurred.

      It is preposterous that a simple error has led to this but that applies to almost all walks of life, the freeholder and agent are seeking to protect their own income stream, but the fault also lies in an error which it seems has been compounded in the subsequent steps.

      If there are breaches then you still can look at 87 Act compulsory acquisition or the appointment of a manager or take an aggressive, sorry I mean proactive and painstaking, approach to their management delivery so that the investment and income stream that they are seeking to protect is “not worth the hassle”.

      That has worked in many cases and in one case allowed an RTA and proto RTM to evolve into a managing agent, leaving insurance and some aspects, licences consents etc, with the freeholder, and taking care of all other aspects, as a compromise. A disagreement over major works was resolved by mediation by the mediation clause written in the contract both sides splitting the cost.

  9. Michael Epstein says:

    Keith Phillips OBE,
    You may see this issue as “taking lumps out of eachother” i see it as a group that cares enough about the fate of Elim Court residents to raise legitimate concerns. Remember, we have seen the consequences of carefully crafted assurances that can easily be got round. A worst case scenario could see residents forfeiting their properties if the court action fails and the RTMF could not meet their obligations.
    The freeholder and business partner are not the only ones standing in your way.You should consider the possibility of a “perverse” court decision, that rules against you on another technicality.
    What Carlex and LKP have tried to do is to make you aware of the risks you are about to take.
    You say “As to what we do next, you can be sure we will consider all these issues most carefully”
    I note the “We Will” You did not say “We Have” Interesting turn of phrase.

  10. “Where there is a deviation from procedure for common sense reasons, as in the Regent Court case, or due to an inadvertent failure due to ambiguity as in Elim, what course should be taken?”

    As expounded the course is clear, whether there is compliance and whether certain steps are prescribed and mandatory. Commons sense rarely meets the law as enacted, and the variance is one of “facts and circumstances of each case” rather than contradictory decisions.

    Even if it means shoehorning the subject of the application into them.

  11. To all

    This is so clearly a “case of last resort”. Peverel indulged in one of these – and came unstuck.

    The Court of Appeal will probably simply turn the thing round and send it back to the tribunal and tell them to stop faffing about.

    Be Fair
    Be Reasonable
    Apply Common sense

    Spelling mistakes should NOT be what this is about – but the principle of who the people at Elim Court want to to run their lives.

    End of story.

  12. Keith Phillips OBE says:

    Mr Epstein seems to enjoy taking further lumps but this time out of me. The point I tried to make, is that the only side getting any comfort from this exchange between Carlex and RTMF are the freeholder and his agent.

    Whilst I fully understand that all who contribute are trying to be helpful, I really don’t need lectures or indeed semantics from anyone on how best to handle this.

    In short I and our members at Elim Court have lived with this now for all of three years and more. I can assure Mr Epstein in particular that we constantly consider most carefully all the ramifications associated with this dreadful situation.

    Ironically the only people actually doing anything are primarily Dudley Joiner’s RTMF. We also value and are grateful for the support of Carlex who continue to champion this rightful cause of ours.

    If you want to have a go at anyone have a go at the individual who made the latest ‘perverse decision’ in favour of the freeholder, as I have, by making a formal complaint about his clearly biased behaviour. I’ve tried everything else, including lobbying the PM, other Ministers and MP’s but all I get in return is the standard unhelpful response from some faceless bureaucrat.

    I’m afraid you will have to forgive my somewhat irritated response but you really have no idea what we have been through or indeed what we are already doing to a) protect ourselves and b) to take this issue forward.

    I have even offered to meet with the freeholder but surprise, surprise, he cant even be bothered to reply to correspondence. Perhaps someone’s told him I’m 6′ 7”and enjoy Rugby!!!

    More seriously, whilst you have a pop at me, I am having to witness the tears from the elderly residents at Elim Court. Some of which sadly can no longer cry because they have passed away whilst waiting for the right to choose who manages their home.

    So dont get on at me, get on to your MP or any minster you can get hold of or even better, contribute to the Elim Court Fighting Fund!

    • Lesley Newnham says:

      Well said Sir!!

      It has made me very sad to read the situation here as both RTMF and Carlex/LKP are the only ones I have experienced truly working FOR leaseholders and sincerely hope they can work together again as they have in the past to help rid us of the leasehold system which is the real enemy here!!

  13. Carlex is closing comments on this subject as it is unlikely that further contributions are going to be of assistance.

    It was with great reluctance that we raised this matter. But we felt we had to, and do so publicly so that all leaseholders are clearly informed of the issues by an entirely uninvolved party.

    A draft of this article was sent to Mr Phillips on October 20.

    The Elim Court residents need time now to think this through.

    Dudley Joiner, of the RTMF, and Sebastian O’Kelly, of Carlex, discussed this matter at length at last night’s annual meeting of the Federation of Private Residents Associations.

    Sebastian O’Kelly
    Carlex