A Southwark Council litigant-in-person leaseholder will lose her home after the council has decided to deploy a top legal team to reverse her £24,486 tribunal victory in the First Tier Tribunal.
Artist Michelle Baharier, 55, who is registered as disabled, declined to pay the bill to install a new communal boiler and heating system at Gilesmead in Camberwell. She successfully persuaded the First Tier Tribunal last year that the system it was an enhancement to what existed, not a repair, and was therefore not payable under the lease.
On this occasion, the property tribunal functioned as it originally intended as a low cost adjudication, with the council making its case with housing staff.
After its defeat, however, it has now engaged the services of Philip Rainey QC, with a hearing in the Upper Tribunal on December 11.
As the action began in the county court, it will determine costs, which in the event of defeat could mean the loss of Miss Baharier’s home.
The Leasehold Knowledge Partnership has urged Southwark Council to hold a meeting to mediate the dispute, involving housing staff and her MP Harriet Harman.
The alternative is the possibility of another Southwark Council leaseholder car crash in the courts, and possible additional expense if Miss Baharier is rendered homeless.
In 2014, LKP reported the disastrous litigation of Southwark Council leaseholder Farieda Chandoo, a former nanny of ex-Chancellor of the Exchequer George Osborne. Miss Chandoo has debts of around £110,000 after fighting and losing a £40,000 major works dispute with Southwark Council.
George Osborne’s former nanny faces £100,000 bills and loss of home
Miss Baharier’s dispute concerned a £1 million refurbishment of the communal heating system at Gilesmean, a site of 40 flats built in the 1960s.
Miss Baharier has lived in her flat since 1991, buying it under right-to-buy in 2008. Owing to the refurbishment, she now has four radiators and a large and intrusive hot water tank, which has been fitted into the sitting room of the two-bedroom flat.
The tribunal ruling (below) pondered at length the distinction between a “repair” to the existing system, or an “improvement”. This has been a crucial issue in several landmark section 20 cases.
Miss Baharier, who was assisted by the Citizens Advice Bureau, argued strongly that three individual contractors has estimated to fit a new boiler and four radiators in her flat, with £4,799 being the most expensive quote.
However, a communal boiler system is a more expensive prospect.
The tribunal concluded that Southwark Council had correctly consulted over the works.
But it concluded that Miss Baharier did not have to pay the £24,486.88p service charge.
It did warn, however, that it had no jurisdiction over how a county court might award costs.
In view of the fact that Miss Baharier sought justice from the property tribunal, and obtained it in her favour, it is wrong that she should now either gamble on an unequal bout against a QC which could leave her homeless. Or meekly surrender.
The irony is that Southwark Council loses either way: if Miss Baharier wins in the Upper Tribunal it will have wasted a lot of money on an expensive legal team. If it wins, it will end up having to rehouse one of its former council tenants who exercised the right to buy.
In July, Jim Fitzpatrick MP, a patron of LKP, told Parliament that the property tribunal “stinks” and lets down leaseholders repeatedly.
Martin Paine ‘is a crook who is turning sleaze in leases into an art form’, MPs told
Tribunal ruling for Michelle Baharier: 17.08.2017 Judgement from First Tier Tribunal – LON-00BE-LSC-2017-0092
Related posts:
Lawyers offer pro bono aid to leaseholder facing QC in £24,000 dispute in Upper Tribunal
Southwark council leaseholders see major works bill slashed from £17,000 to £8,000
Southwark hosts meeting of 350 council leaseholders
Southwark announces new bills … and no funds for leaseholder group
George Osborne’s former nanny faces £100,000 bill and homelessness after refusing to pay major works on her leasehold ex-council flat
LKP London meeting for leaseholders November 10
There are so many comments that come to mind, not all favourable to one side, but none will lighten the trauma.
Except one.
Where else other than in English residential leasehold could it cost an occupier TWENTY FOUR THOUSAND quid for a heating system for a TWO BED flat?
Seriously? This was the best deal?
S20 is surely meaningless in this regard?
Would Mr Brokenshire et al expect to pay this for a heating system in a 2 bed flat?
Was no study undertaken as to any other alternative than a communal system?
I hear modern compact combi systems pump out 25 kWhs and need little in pipework infrastructure – not even a tank.
I am mystified. But I am old.
As I asked… para 20 of the FTT decision reveals:-
“The landlord…decided…to consult further with leaseholders regarding the possible installation of individual boilers in place of a communal heating system.”
Excellent.
And?
Did the leaseholders knock back the idea of individual boilers in each flat?
A story’s impact is the whole story?
The council should have appreciated that the heating system was antiquated and that a new type of heating system, presumably a great deal more efficient should have been proposed
It should equally have realised that £25,000 per lessee was going to be a very confrontational and have also appreciated that it was going to be challenged.
It is possible that cheaper works would not have been permissible under the lease as they are improvement .It should therefore have engaged in an open dialogue with the lessees and once having gained their opinion then made an application to the FTT for clearance and if necessary a change in the lease to enable the works to go ahead and for recovery of the charges. As Paddy says no explanation is given in para 20 as to why the process started and then became derailed.
One can only hope that the savings in heating costs the lessee should make will defray the costs of borrowing the sum (presumably from the council) to pay for the works.
Interesting to note the name of the QC engaged.
One can only hope Stephen? One can only hope from the Stephen who defends leasehold? The very same Stephen who argues that if it is in the lease the leaseholder should abide by the lease, lest there is a breach of freeholder’s human rights?
The tribunal is trumpeted as a low cost arbitrator of disputes Indeed great store is set by the tribunal by those seeking to militate on behalf of the leasehold system.
This is yet another case that proves this to be a sham!
A leaseholder can go to the tribunal and win, but if it doesn’t suit the freeholder with deep pockets they simply rock up at a court with highly specialised barristers charging huge amounts and beat a poor leaseholder into submission.
Southark council have form in this matter. I seem to recollect a scandal involving a roof replacement(that turned out not to be needed) for which a lady sadly could not cope with the stress with tragic consequences for her and her family.