Dear Jason,
We have been using correspondence to clarify positions and
narrow what truly requires judicial time. If the basics are
clear between us, the hearing can focus on what needs a judge.
Your refusal to engage even with straightforward clarifications
by email is not new; it has been the default pattern throughout.
The result is that simple points are pushed into court time—an
inefficient and costly way to proceed. The irony is plain: while
you repeatedly accuse us of seeking delay and expense out of
spite, it is your own approach that drives both. We will make
that clear to the Court.
From your dismissive email should we assume that your
clients are refusing/not interested in exercising their right
to inspect documents relating to the service charge account as
envisaged by the statutory scheme under s.22 of the LTA
1985? That is their choice, but our offer of making those
documents available for inspection still stands.
I note your assertion that the TR1 provides sufficient security
for service charges. You do not, however, identify how service
charges could fall within the wording of that indemnity at all.
They are not covered by it, nor are any other amounts we would
be entitled to recover (such as retrospective consent to works,
costs arising from breaches or ground rent). Neither the
Tribunal nor the Court has ever said otherwise. As you provide
no response to any of the specific points raised, this will have
to be fully addressed at the hearing.
On the deed of variation, the point is straightforward: the
Tribunal did not take the increased ground rent into account at
the hearing. Paragraph 56 of the decision is explicit—the
Tribunal had no evidence of the variation and therefore ignored
it. To argue otherwise is absurd. We will pursue this through
the Tribunal as a change of circumstances, which is itself a
further reason why any vesting order would be premature. It also
leaves a fundamental dispute on facts and law in relation to the
“sham” allegations—further evidence of why Part 8 procedure is
unsuitable.
On the cellars, your position remains evasive. At different
times you have said they are included, excluded, within the
registered title, unregistered, or covered by the TR1. You avoid
committing to one outcome or clarifying matters by reference to
the plan at page 66 of the bundle. At some point you will have
to state clearly what you contend: which cellars are included,
on what basis, and by what mechanism of transfer.
The position is not complex. The Land Registry title plan
(bundle, p.36) extends only to the footprint of the building. It
necessarily excludes the three lock-up cellars and the bin
housing, all of which sit under the pavement. These areas are
therefore outside the registered title and unregistered land. As
such, they cannot be transferred using a TR1 and there are no
terms determined by the Tribunal for their transfer. Still less
terms that take into account any existing dealings relating to
those cellars.
These are matters that could have been clarified or agreed
before the hearing, as noted in my opening. As you are unwilling
to discuss them further, they will now need to be argued before
the Court.
Regards,
Davy
of and on behalf of Tarquin Management