April 28, 2017

Elim Court fails to win epic right to manage on appeal

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The elderly residents at Elim Court have failed to obtain right to manage on their third attempt ... more than three years after they began the process

The elderly residents at Elim Court have failed to obtain right to manage on their third attempt … more than three years after they began the process

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:

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

Comments

  1. Michael Epstein says:

    I could cry for the suffering of the residents at Elim Court. They will win in the end. If it is of any comfort, theur plight will go a long way towards ending the scourge of leasehold..
    For any managing agent seeking a management contract, i would insist they give a binding undertaking never to use the serrvices of Justin Bates.

    • Michael,

      I agree with you 100%. No amount of changes to the Antiquated medieval rip off Leasehold will
      do. It has been changed here and there over the years and the same old story and suffering of the
      Leaseholders continue.
      The one and only way is to abolish it completely and bring in the Commonhold like everywhere else
      in the world.

      Now is the time to step into the 21st Century. Enough is enough!

  2. Given that I have been mentioned by name in the above report and that my organization RTMF is the party that is paying the legal costs, I am surprised and disappointed that I was not consulted before the article was published. Carlex has my personal mobile number.

    It is noted that the Upper Tribunal Decision is dated 10th September 2014 and it is implied that the RTMF has been tardy in providing information to Elim Court leaseholders. This is wholly unfounded.

    I believe the date of 10th September relates to the date the Decision was first released in draft form to the lawyers. At this stage the content of the draft decision was strictly confidential and for the eyes of the parties advocates only. I understand this is normal practice when the issues are complex. It enables the lawyers to submit any errors of fact, spelling or grammar. The RTMF was not sent and was not entitled to see a copy at this time.

    Late in September our solicitor received a communication from one of the solicitors on the other side in relation to costs, which implied the Decision had been formerly published. This prompted our solicitor to call the Upper Tribunal office, who claimed a copy of the final Decision had been sent out to all solicitors on record. Our solicitor advised that she did not receive this copy and duly requested a further copy. The RTMF was first sent a copy of the Decision late on Friday October 10th 2014. Although I understand early publication makes it look more of a journalistic ‘scoop’ I think it is unfortunate the Carlex report was rushed to publication without consultation and before the RTMF had the opportunity to notify the elderly leaseholders involved.

    References in the article to potential legal costs raises unnecessary fears in the minds of Elim residents who have already been given assurances the costs will be paid by RTMF. The RTMF has always honored that commitment, as evident from the case of Regent Court in Plymouth, which was also appealed to the Upper Tribunal.

    The article summarizes a complex court judgment, which is not easy as the hearing involved five different leasehold estates. Those that attended the hearing, which included leaseholders’ representative Keith Phillips OBE, have complained about the bias of the judge and the bombastic, inquisitorial approach he adopted during Margarita Mossop’s submissions. RTMF intends to complain to the President of the Upper Tribunal about the Judge’s conduct of the case and has ordered a transcript of the hearing, which it will use as evidence for its complaint and for an appeal to the Court of Appeal.

    It was the Judge’s determination on two issues that caused Elim to be denied its right to manage.

    First was the determination by the judge that “there is no ambiguity in the meaning of section 78(5)(b) “. (The Saturday/Sunday point). Mrs Mossop argued that the ambiguity was self-evident and indisputable because two independent expert tribunals had arrived at two different interpretations of the same section of statute.

    Secondly the Judge determined that an equity release company was ‘an intermediate landlord’ and should have been sent a copy of a Claim Notice at its registered office. Mrs Mossop argued that an equity-release company, with no management responsibility, was not a landlord for this purpose.

    Further, on both issues, Mrs Mossop argued that there was no evidence of any prejudice resulting from the alleged failures and quoted substantial authority for the proposition that procedural errors where there is no prejudice should not be fatal to an otherwise valid claim. The Judge said it was for the RTM companies to shown there was no prejudice. The Judge did not explain how one could prove a negative!

    Finally, it is worthy of note that the Judge, Martin Rodger QC, who was appointed in June last year, was previously a barrister at Falcon Chambers throughout the whole his professional career. Opposing Counsel in this hearing was Oliver Radley-Gardner, a barrister from Falcon Chambers.

    I apologize to Elim residents who have come to hear of the result third hand. Residents will be formally notified next week.

    Dudley Joiner
    Director
    RTMF

    • The Elim Court decision was publicly available on the Ministry of Justice website on October 6.

    • Lesley Newnham says:

      Dudley

      I am quite sure the residents at Regent Court and Elim Court are extremely grateful to you and Nick Bignell for all your hard work to help them as we are at Knighton Court also in Devon. The fact Elim Court has been denied their right to RTM on such pathetic points is an absolute disgrace and another case for Sir Peter Bottomley to add to his list of ‘legal tortures’ with the incorrect spelling of your name throughout the documentation only adding to the insults!!

      It also shows that landlords with their legal teams are having to clutch at straws in order to preserve their lucrative income streams and why the ordinary man in the street does not trust the tribunals system to give them an ‘unbiased’ outcome at a price they can afford. Until leasehold is abolished as it surely must be any time soon please continue to help those vulnerable and exploited residents achieve RTM.

    • John Henche says:

      Opposing barrister Oliver Radley-Gardner also co-authored with the learned judge: “Endeavouring to avoid dispute” (2013) In-House Lawyer !

    • Len Inkster says:

      My heart goes out to these leaseholders. I am flabbergasted that once again the legal “Wigs” can with a swish of a pen and subjective vision applied to wording of a complex law disregard the spirit ot eh the original legislation which is to give people the RIGHT TO MANAGE.

      In each case, this subjective analysis, which purportedly was done after careful studying of the information at hand, gives leeway to the landlord, based upon wording, which without due punctuation is vague and open to misinterpretation.

      I am also amazed that given the QC’s insistence on particular attention to grammatical details, which at best in the English language have been the cause of lengthy and costly arguments in the English Legal system, and at worst been fuel to a fight or two over the centuries, couldn’t include the insistence that the names of one of the individuals in the action could be spelled correctly in the final summation.

      I believe the QC owes Mr Joiner an apology for the mis-spelling of his name as ‘Joyner’ throughout the document and at the same time an admission that if one cannot ensure the correct spelling of a homophone in a legal document, then due consideration should be made as to whether the grasp of the QC’s English language is sufficient to allow a subjective judgement to be made on the wording of legislation that has a binding and often negative impact on the lives of the very people the legislation was originally designed to protect.

  3. Sad,

    But the message is clear .. make sure the i’s are dotted and the t’s crossed. All the time, and Every time.

    Sad that common sense does not prevail. the LAW is NOT for the “provision of justice”, but for the execution of the law.

    Sad days that a couple of financiers are just too bitter to have any common sense joined with a sense of justice.

    sad days

  4. Sad though it is, all fields of legal endeavour do rely on acccurate submissions, especially as in these sorts of cases, the freeholders and the grammar/form filling police are set on you as the only recourse to stifle RTM. It is what it is.

  5. If Elim Court haven’t already done so they should form a TRA and ask the local FTT to recognise it, not ask the landlord.

    Perhaps they can look at the appointment of a manager instead and, after a suitable time, apply for RTM, or compulsorily acquire (87 Act) rather than enfranchise(93 Act) as the valuation terms are a little better.

  6. Michael Epstein says:

    I am not known for sitting on the fence. I believe Carlex was totally justified in publishing a legitimate news item.
    That said, Dudley Joiner has given a full and frank explanation of all the circumstances.
    Given the shark infested waters that the RTMF(along with Carlex, LKP and About Peverel have to swim in, mistakes and unexpected losses can happen.
    To me, the latest setback only goes to serve my opinion that such must be the financial expoitation residents at Elim Court are exposed to, the freeholder/managing agent will go to any lengths to keep the residents captive.

  7. The free guide on “Right To Manage” issued by LEASE says this :

    The Commonhold and Leasehold Reform Act 2002 provides
    a right for leaseholders to force the transfer of the landlord’s
    management functions to a special company set up by them –
    the right to manage company. The right was introduced, not just
    as a means of wresting control from bad landlords, but also to
    empower leaseholders, who generally hold the majority of value
    in the property, to take responsibility for the management of their
    block.
    The right to manage is available to leaseholders of flats,
    not of houses
    .
    The process is relatively simple. The landlord’s consent is not
    required, nor is any order of court. There is no need for the
    leaseholders to prove mismanagement by the landlord. The right
    is available, whether the landlord’s management has been good,
    bad or indifferent.

    Somebody like the Housing Minister or Attorney General should explain to the UTT what Parliament intended the RTM to given to leaseholders as statutory right.

  8. Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

    “ Article 8 – Right to respect for private and family life

    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    Art 8 also means the UTT and EVERY branch of Government and Court in E&W to respect the right of the leaseholders to seek the statutory right to take control of their service charge account.

  9. Keith Phillips OBE says:

    I hesitate at this stage to add anything more to this sad tale other than to express sincere thanks to all for their kind and helpful contributions. I’m sure these will at least offer a crumb of comfort to the beleaguered and elderly pensioners at Elim Court.

    These are genuinely nice people who just want to live in peace. A peace being denied them by elements of the legal and political elite who clearly do not value that sentiment or indeed the values of common sense and fairness. I can only hope that either they or their own kind may find themselves in this predicament one day. Perhaps then they will truly understand the damage they do to others less fortunate.

    On behalf of all at Elim Court we are truly grateful to RTMF and to Carlex for all that they do in trying to rid us of this archaic and disgusting leasehold scenario.

    As for us, Elim Court’s RTM and Residents Association officers will meet in the next few days to consider where we go from here. You may be assured we wont go away and in the process of fighting on we’ll make things as uncomfortable as possible both for the landlord,his agent and their tame legal torturer, within the law of course!

  10. Michael Epstein says:

    Keith Phillips OBE,
    Many have found that the knowledge they are not suffering alone or in silence is of comfort.
    I do hope the residents of Elim Court know they have the support and good wishes of people over the whole country.
    Keep strong, you will be free!

  11. Keith Phillips OBE, CARLEX, LKP & Other Contributors,

    Thank you all for such positive comments in support of the RTMF and the residents of Elim Court.

    We are just taking the early steps towards RTM, which has only recently become a legal option for us as a Leasehold Scheme for the Elderly. Although aspects of the considerable legal frustrations are totally deplorable, and particularly for the elderly fraternity at Elim Court, the efforts of Dudley Joiner at RTMF and CARLEX in support of the elderly are highly commendable and provide us with a feeling of welcome support in this legal wilderness. We are optimistic that our landlords, Hanover Housing, will support us more positively with our RTM … we live in hope …

    LHC Residents’ Association, Bournemouth

  12. I can only think this judge has no values that relate to elderly people living our their later years in peace and happines, no appreciation of what is right and just and certainly no heart.

    I wonder if the judge, the opposing team, or MPs, ministers understand the emotional and psychological turmoil and distress, and the physical impact on already frail people that the treatment from Y&Y, the waiting, the power-playing and then this stupid, pedantic miscarriage of justice actually has. Older people need especial care and respect in our society not being taken to the cleaners by a bunch of greedy crooks.

    Its a crying, crying shame. These residents have lived through the war, many fought in it and contributed to society – they are being treated shamefully.

    I just feel so sad, and angry for them. Its shocking.

    • Michael Epstein says:

      Sally H,
      I fully understand your emotion on this subject. However the law (and any judge does not work on emotion) Rather like finding a loophole to avoid a parking ticket, it is open for every barrister to exploit every opportunity to represent their client.
      As frustrating as it may seem, even a defeat advances our cause. Because we know the reason for the loss at Elim Court, that will be taken on board for the next action.
      It is proof of our success, that Mr Bates has been reduced to advancing his case on such technicalities.
      Over time, we will deny Mr Bates the loopholes he needs to operate.

  13. Len Inkster says:

    Legislation here in Canada is too strict for predatory sharks to rip-off leaseholders. It is such a shame that legal loopholes in the English system can allow people to fill their pockets with silver pieces at the expense of those who can least afford it, and can even less defend themselves against such practices.

    It is an even bigger shame, that it appears in this case, that the loopholes are being used by adopted Canadians to protect their cash-cows.

    I am ashamed on behalf of all Canadians.

    • Caroline Murphy says:

      I totally concur with your comments. The managing agents to my knowledge have both overcharged the residents due to inadequate accounting and tried to incur unnecessary overpriced expenses. A prime example was after taking over from Peverel they decided a new, unnecessary, communications system should be installed at an exorbitant cost. Fortunately the residents were not as senile as the managing agents took them to be and blocked this action. Subsequently and fortunately their is now a Residents’ Association in place.

      Ahother concern is the property insurance which is not transparent and cannot be viewed by the residents. Their fear is that they are not properly insured and with the problems Regents Court had with their “uninsured roof” surely the above two points count as management misconduct which are two reasons to legally change managing agents.

  14. Avon Freeholds Ltd ( Co. No. 07399653 ) was incorporated on 7th Oct 2010 and declared a statement of capital at only 2 pounds.

    This means Avon Freeholds Ltd finances its freehold investments by bank loans and treats interest charges as allowable expenses to offset against rental income. What did Avon freeholds Ltd pay in company tax to HMRC ? I suspect very little or nothing was paid in tax. Even the cost of going to Court and Justine’s charges will be charged as expenses to reduce Avon’s taxable profit.

    However leaseholders and the rest of the working population in UK have to buy their leasehold property from AFTER -tax income at 20% or 40% . So buying a leasehold property costing 100K pounds , the buyer must have paid 20K or more tax to HMRC .

    Can someone check how much tax was really paid by Avon Freeholds Ltd to year ending 31 Oct 2012 and 31 Oct 2013 ?

  15. Caroline Murphy says:

    George Chapman in the 17th century in his play stated “the law is an ass”. This is a case in point.
    It is incomprehensible that a landlord is able to employ its own company to manage the leasehold.

  16. Michael Epstein says:

    Perhaps in future to avoid situations such as this,perhaps it could be enshrined in law that where a RTM notice is served on a freeholder, all objections must be served on the RTM company before court action.
    This would allow genuine disputes to be settled in court, but would stop spurious objections such as leaving the letters “RTM” out of the name of the RTM company.