Residents not informed of court decision of a month ago
What are the freeholder’s legal costs?
Right To Manage Federation has said it would pay
Elim Court’s battle to break free of London freeholder Israel Moskovitz and his associate Joseph Gurvits has failed on appeal to the Upper Tribunal.
The ruling on the right to manage application is dated September 10, but residents at Elim Court in Plymouth have still not been informed of the court’s decision by the Right To Manage Federation, which handled the case.
“We have not heard a word,” said resident Janet Inkster. “This is very distressing. People keep coming up to me asking what is going on and we simply do not know. We should have been told what was going on.”
Last night Carlex contacted Keith Phillips, OBE, the former fire service executive who has been assisting the residents, to say that the right to manage had failed.
Phillips, too, is concerned not to have been informed of the decision.
It has been suggested that there were corrections to the ruling, and some sort of embargo imposed.
The open question now is the extent of the legal costs for freeholder Avon Freeholds, owned by Mr Moskovitz, which was represented by a full legal team including a barrister.
These could be many thousands of pounds and the Right To Manage Federation has said it will bear all the costs, not the residents.
On January 13 2013, when Elim Court lost in the Leasehold Valuation Tribunal – more here – Dudley Joiner, of the RTMF, made clear to Carlex that it would bear all the costs associated with the litigation.
“There is no uncertainty over this. The RTMF has said it will pay all legal costs and has already paid out substantial sums for legal costs to date.”
The failure to win the appeal – its third right to manage application – ends a long running saga at Elim Court, which first began the process in June 2011.
Within months of Avon Freeholds buying the freehold and appointing its long-time associate Y and Y Management, headed by Joseph Gurvits, to manage the site the elderly residents of Elim Court have been desperate to be shot of them.
Earlier this year residents at Elim Court won a case against the freeholder relating to service charges, which saw sharp criticisms of Y and Y Management’s administration of the site. More here
Elim Court’s appeal to the Upper Tribunal was one of five right to manage applications presented by the Right To Manage Federation. It lost three of them, including Elim Court.
The Right To Manage Federation was represented by its habitual solicitor Magarita Madjirska-Mossop [spelled wrong throughout the court documents].
The barrister Justin Bates, who defeated Elim Court’s application at the LVT, represented the Moskovitz freehold interests. Mr Bates is highly experienced in fighting off right to manage applications on behalf of his freeholder clients.
He argued that the application was flawed because Dudley Joiner [incorrectly spelled “Joyner” throughout the court documents], of the RTMF, had signed the notice claims with the words “RTMF Secretarial, Company Secretary”, so the form was signed by a company on the applicant company’s behalf. Therefore, it was not validly signed.
Martin Rodger, QC, the Upper Tribunal deputy president, rejected this argument.
Another objection was that the memorandum of association and the articles of association of the RTM company needed to be open for inspection at a specified place in England or Wales for “periods of at least two hours on each of at least three days (including a Saturday or a Sunday or both) within the seven days beginning with the day following that on which the notice is given”.
This had not happened and the Upper Tribunal upheld this objection.
One flat held on a long lease by a landlord was not served a notice to join the RTM application. This “seems to me to be failure of compliance of a different order and to be fatal to the integrity of the statutory process”, said Mr Rodger.
Earlier, Mrs Madjirska-Mossop had argued in the Saturday / Sunday issue for the Upper Tribunal to show what might be termed common sense: “ambiguity ought to be resolved in favour of the RTM company to allow it greater flexibility because, Mrs Mossop submitted, the object of the statute was to provide the qualifying tenants with a simple route to the acquisition of the right to manage. A non-technical approach was therefore valid …”
This argument did not persuade.
Of the five RTM applications the two that succeeded were:
369 Upland Road RTM Company Limited, in London SE22, and Canadian Avenue RTM Company Limited, in London SE6.
Those that failed were:
Elim Court RTM CO Limited, in Plymouth
Farnborough Road (Calloway House) RTM Co Limited
Farnborough Road (Brand House) RTM Co Limited, both in Farnborough, Hants.
The full Upper Tribunal ruling can be read here: