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How to deal with elusive fellow freeholder?

including wills and probate
vrdiver
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Re: How to deal with elusive fellow freeholder?

#130327

Postby vrdiver » April 6th, 2018, 10:14 am

johnhemming wrote:
GoSeigen wrote:
johnhemming wrote:Hence I would personally recommend sending a letter of claim by looking up the relevant pre-action protocol and sending it on a signed for basis.

The fiver or so that it costs to have it signed for may make all the difference.


I don't understand. What difference will signed for delivery make? A letter sent first class to the service address is already correctly served ...

GS

It is a psychological issue. The recipient is more likely to take it seriously. In the end you need by law as a minimum to send it first class and get a receipt for postage. However, I would always personally prefer a tracked delivery because there also is proof of receipt. The Royal Mail are not perfect.

But as mentioned earlier, requiring a signature on delivery gives the recipient the opportunity to refuse receipt - with documented proof! Hence the need to send by 1st class as the legal route (get a proof of posting!)

johnhemming
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Re: How to deal with elusive fellow freeholder?

#130338

Postby johnhemming » April 6th, 2018, 10:57 am

I cannot easily find the legal precedent to justify this, but I am not sure that refusing to accept a letter stops it being valid service.

newlyretired
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Re: How to deal with elusive fellow freeholder?

#130414

Postby newlyretired » April 6th, 2018, 3:40 pm

johnhemming wrote:I cannot easily find the legal precedent to justify this, but I am not sure that refusing to accept a letter stops it being valid service.


There was a post on TMF from CK where exactly this did happen - and it proved very costly for the person involved

newlyretired

vrdiver
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Re: How to deal with elusive fellow freeholder?

#130419

Postby vrdiver » April 6th, 2018, 4:14 pm

newlyretired wrote:
johnhemming wrote:I cannot easily find the legal precedent to justify this, but I am not sure that refusing to accept a letter stops it being valid service.


There was a post on TMF from CK where exactly this did happen - and it proved very costly for the person involved

newlyretired

Costly for the person who sent the letter, or the person who refused it?

VRD

dionaeamuscipula
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Re: How to deal with elusive fellow freeholder?

#130425

Postby dionaeamuscipula » April 6th, 2018, 4:36 pm

To be clear, the discussion about first class versus second class versus signed receipts relates to court documents.

Notices under a contract (including a lease) need to be given strictly in accordance with the terms of the contract itself.

DM

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Re: How to deal with elusive fellow freeholder?

#130440

Postby newlyretired » April 6th, 2018, 5:51 pm

vrdiver wrote:Costly for the person who sent the letter, or the person who refused it?


It was costly for the person who sent the letter - they proceded (with a winding up order?) on the basis that the letter had been delivered and incurred substantial costs when it transpired that it had not been delivered. I think that CK could provide further details.

newlyretired

johnhemming
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Re: How to deal with elusive fellow freeholder?

#130452

Postby johnhemming » April 6th, 2018, 6:54 pm

newlyretired wrote:It was costly for the person who sent the letter - they proceded (with a winding up order?) on the basis that the letter had been delivered and incurred substantial costs when it transpired that it had not been delivered.

The nub of the issue is that there are different ways of serving notices etc and sometimes you have to use a specific mechanisms (for example sometimes Emails are acceptable and sometimes they are not, that depends upon what the recipient says normally).

There are quite a few legal cases which have rested upon the question as to whether the initiating documents were served properly. Hence check the rules (which are normally available on the net now) and make sure you use the right rule.

I had a legal case once which I left strict instructions with solicitors as to how to handle it. It required personal service within a strict 5 day deadline, but the lawyers didn't follow the rules and the case failed on that basis.

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Re: How to deal with elusive fellow freeholder?

#130567

Postby pochisoldi » April 7th, 2018, 3:18 pm

johnhemming wrote:I cannot easily find the legal precedent to justify this, but I am not sure that refusing to accept a letter stops it being valid service.


Have a look at:
https://www.lexology.com/library/detail ... 8c6f90a7c7 which relates to the service of a Landlord & Tenant Act 1985 S20B notice on a leaseholder, whose lease which stated that notices should be served according to the Law of Property Act 1925 S196.

I would argue that anyone who claims that a notice was successfully served by recorded delivery is obliged to provide two pieces of evidence to back it up - (1) the receipt for sending, and (2) evidence that it was signed for.

If someone refuses to sign for a letter then item (2) cannot be produced.

However if the same person wanted to claim that notice was successfully served by 1st class post, all they have to do is provide a receipt that proves that it was sent.

Or put another way, if the contract/lease says "service by post", sending an item 1st class with a proof of posting is irrefutable evidence of service.

Service by recorded delivery is only successful if the item is accepted and signed for. In many cases, the more cunning/devious will be expecting the letter, will refuse to accept it, and service will fail. You've just wasted a fiver.

I stick by my previous point when giving notice/serving by post - always send it 1st class post. If you really want to, then send it by recorded delivery as an "as well as" not an "instead of".

PochiSoldi

johnhemming
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Re: How to deal with elusive fellow freeholder?

#130576

Postby johnhemming » April 7th, 2018, 4:04 pm

I don't think you are right, but I cannot prove it at the moment.

I have found this, however, which is not directly the same, but relates to refusal of personal service:
http://www.geldards.com/serving-a-debto ... right.aspx

pochisoldi
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Re: How to deal with elusive fellow freeholder?

#130915

Postby pochisoldi » April 9th, 2018, 1:55 pm

johnhemming wrote:I don't think you are right, but I cannot prove it at the moment.

I have found this, however, which is not directly the same, but relates to refusal of personal service:
http://www.geldards.com/serving-a-debto ... right.aspx


The web page you have referred to doesn't even have case citation.
It refers to personal service of documents relating to insolvency, the case at hand relates to service in writing of documents relating to a lease.
It is dated July 2016, Southwark v Akhtar dates from 2017, so even if the 2016 case was relevant and set a precedent at the time it would be overruled by the later case anyway.

PochiSoldi

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Re: How to deal with elusive fellow freeholder?

#131033

Postby Clitheroekid » April 10th, 2018, 1:20 am

There's a great deal of confusion here about the rules for service of documents. Different regimes apply for different areas of law, and there is no `one size fits all'.

However, in landlord and tenant law the first thing to do is look at the lease. There will always be a section, normally towards the end, which will set out the rules for service. A typical one, grabbed at random, reads:

Any notice under this lease shall be in writing and may be served on the person upon whom it is to be served either personally or by leaving it for him at the Premises (if he is the Tenant) or at his last known place of abode, or by sending it by registered post or the recorded delivery service to the Premises or his last known place of abode and any notice to be served on the Landlord may be served in like manner upon any agent for the Landlord duly authorised in that behalf

So you just have to follow the instructions in the relevant clause. Provided you do so it does not matter at all that the recipient may refuse to sign for it - the court will deem him to have been duly served.

With regard to the substantive issue I’ve found from years of experience in acting for a fairly large management company that the most effective way of getting paid is to write to the defaulting tenant’s mortgage lender and say that he’s in arrears and that you are planning to forfeit the lease. This would leave them with zero security for their loan and therefore induces a very encouraging –if unfamiliar – sense of urgency to co-operate.

What normally happens is that they just send you a cheque for the outstanding amount and debit it to the tenant’s mortgage account. Job done!

If they ignore a letter from you then it’s probably worth paying a solicitor to write to them, as it would be very unusual for that not to get a result.

Once the tenant has suddenly noticed a substantial increase in his mortgage debt he’s unlikely to be a problem again.

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Re: How to deal with elusive fellow freeholder?

#137424

Postby DiamondEcho » May 7th, 2018, 9:11 pm

pochisoldi wrote:Go with the flow - some people want to feel like they've gone the whole hog or want peace of mind, so let them do it. So as long as they are aware that they need to send a copy ordinary first class, you've done your duty. PochiSoldi


There's a middle-path between 'signed for' premium mail and regular mail that's 'deemed serve' [or similar]. Use regular mail and at the Post Office get a Certificate of Posting, free of charge.


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