The reason for this is that even if he was able to have the new flats built, the headlease gives no rights of access. Sadly, rather than negotiating access rights with the directors of the headlease company, he decided on the litigation route. As history, the property suffered huge neglect until 2001 when the FH was sacked as Managing Agent by the then directors for incompetence, having managed the property for the previous decade or so, yet left the accounts over £10K in deficit. The block has been improving ever since, but with more still to do. In summary:
- He firstly started a LVT action for breach of the main covenant to keep 'the property in a good and substantial state of repair', which he won (there are still works outstanding).
- The program of outstanding repairs was accelerated, and month by month the number of outstanding issues was diminishing.
- The FH was sent a Gantt chart listing the repairs program, but he was not satisfied with this. Thus he issued a s146 notice citing the remaining issues.
- We then issued counter notice under the LP (Repairs) Act.
- Two months later we received a court bundle where the FH started an action under Part 8(a faster procedure where facts are not disputed) seeking leave under the LPRA 1938 to take forfeiture action. However, he had introduced many new issues in his claim that hitherto we were unaware of based on reports he had commissioned over six months previously, yet despite him claiming that these constituted the need for urgent and immediate repairs to protect his ownership, chose not to give us advance notice of these.
- We thus objected to the use of Part 8 being that facts were disputed, and a telephone case conference was arranged between the judge, FH, and us. On the day, the FH had benefit of Counsel. Despite this, with Counsel arguing that Part 8 was the correct way forward, the judge sided with us that there were significant facts that were in dispute. The case was moved to Part 7, Multi Track, with directions over the coming months, and a trial target of Summer 2013.
- A Pre Trial Review is scheduled for later this month
- From documents seen so far, we estimate that the FH has so far spent around £40K on his forfeiture action
While the above has been going on
The leaseholders, being fed up with the shenanigans of the FH, decided to go down the enfranchisement route - this being the only way to permanently stop him. This process started just over a year ago (These things take so long!) and it resulted in 2/3rds of the leaseholders paying initial monies and signing a participation agreement, and now all bar one of the remaining non-participants now want to come on board. The enfranchisement lawyer has yesterday issued the s13 Initial Notice, and as the valuer and lawyer state that there is no hope value on the planning permission, and with the leaseholders still having 970 years on their leases the offer is little more than a few thousand.
As you can imagine, the FH will have an apoplectic fit when he opens the s13 notice, and no doubt will be furious that his plans are likely to be thwarted.
Question
The enfranchisement lawyer is a specialist and states that he does not do litigation. Now that the Initial Notice has been served, we wish to ask the court to stay the forfeiture action pending the outcome of the enfranchisement application.
Bearing in mind the FH's attitude so far, it is highly unlikely that he will agree to a Tomlin Order staying his application for leave to take forfeiture action, thus we will have to approach the court direct.
We have this week received a Listing Questionaire N170 to be returned within 10 days. Should we make use of Section A2 where it asks, ' I believe that additional directions are necessary before the trial takes place', or do we write to the court direct? If a direct approach, is there a specific form (I can't find one that fits)? Is there a fee to pay?