Question 1

Emergency Care Line

Accepted Answer

Q: We'd be grateful for your advice and comments on a matter that has emerged during the last twelve months and is now on the agenda for our AGM. Our block has twelve apartments for residents over 55. The Lease provides for the service of a warden in case of an emergency. This service was available until 1985 when it ceased and was replaced by an emergency care line service, installed via each resident's existing telephone line. It was - and still is - provided by an outside firm, and the cost is included in the service charge, payable monthly, pro rata . All the residents are now of the opinion that the service is outmoded as they each have individual means of calling for emergency help. They feel that the cost of the service is unnecessary and its removal would not be detrimental to their safety whilst reducing what is, in their opinion and by any standards, an unreasonably high overall service charge. The landlord has acknowledged residents' wishes and would agree to the cessation of the service, subject expressly to two conditions, namely : (1) a secret ballot to such effect, agreed in writing by each resident and (2) a Deed (or, possibly Deeds) of Variation to remove the relevant clause of the leases of the 12 apartments to be entered into by ALL residents While all residents are prepared to accept and fulfil (1) above, they are of the opinion that condition (2) above is wholly unnecessary (and maybe a deliberate stumbling block) because an emergency warden service is not now available and could not practicably be made so, and nowhere in the leases is there any reference to its replacement by the current service provider. Accordingly, will you please advise on the following: (1) Whether or not the preparation (and, presumably registration) of a Deed (or Deeds) of Variation is strictly necessary (ie what is there to vary?) and (2) In the event that they are so obligatory, what is the likely amount of legal costs, Land Registry fees and, possibly, costs of an application to FTT? FPRA Hon Consultant Roger Hardwick replies: I agree that the provision of a care line service is not a service which the landlord is obliged to provide, nor is a service for which the landlord is entitled to charge under the terms of the lease. The leaseholders would be well within their rights to refuse to pay for this service. The Landlord is obliged to use “best endeavours” to provide a “warden” to render reasonable assistance in cases of an emergency, “so far as practicable”. The term “warden” is not defined. A couple of points:

I can’t see that the landlord is able to recover the cost of providing a “warden” as a service charge. Under your lease, the tenant covenants to pay a proportion of the “expenditure on services”, which is defined as the expenditure on the matters set out in a schedule, which contains no reference to a warden (or any similar services). It may be that the exit fee exists partially for the purpose of compensating the landlord for this expense.
I can see why the landlord would want to remove the clause, particularly if there is no obligation to contribute towards the expense. An obligation to use “best endeavours” is more onerous than an obligation to use “reasonable endeavours”. It effectively obliges the covenantor to do everything possible, no matter how onerous, to perform the subject matter of the covenant. The term “so far as practicable” limits the landlord’s obligation somewhat, but in my view it would take more than the provision of a warden simply being economically or financially onerous, or awkward or impractical, to absolve the landlord. I would not recommend agreeing to the removal of this provision. I can’t see how it would benefit the leaseholders.

My firm would charge a set up fee of £2,000 plus VAT and then a further fee of £500 plus VAT per flat for preparing, completing and registering the deeds of variation. It is not possible to say how much an application to the FTT would cost. The cost would depend on a range of factors: what application is being proposed (an application to vary leases, an application to determine service charge liabilities); what, exactly, would you be asking the FTT to determine; how many applicants and respondents would there be; how many individuals would be likely to support and oppose the application... etc.? The cost could be anywhere between £15,000 - £40,000+ plus VAT, if the matter were to proceed to a full oral hearing. [Submitted December 2016]

Question 2

Emergency Care Line

Accepted Answer

Q: We'd be grateful for your advice and comments on a matter that has emerged during the last twelve months and is now on the agenda for our AGM. Our block has twelve apartments for residents over 55. The Lease provides for the service of a warden in case of an emergency. This service was available until 1985 when it ceased and was replaced by an emergency care line service, installed via each resident's existing telephone line. It was - and still is - provided by an outside firm, and the cost is included in the service charge, payable monthly, pro rata . All the residents are now of the opinion that the service is outmoded as they each have individual means of calling for emergency help. They feel that the cost of the service is unnecessary and its removal would not be detrimental to their safety whilst reducing what is, in their opinion and by any standards, an unreasonably high overall service charge. The landlord has acknowledged residents' wishes and would agree to the cessation of the service, subject expressly to two conditions, namely : (1) a secret ballot to such effect, agreed in writing by each resident and (2) a Deed (or, possibly Deeds) of Variation to remove the relevant clause of the leases of the 12 apartments to be entered into by ALL residents While all residents are prepared to accept and fulfil (1) above, they are of the opinion that condition (2) above is wholly unnecessary (and maybe a deliberate stumbling block) because an emergency warden service is not now available and could not practicably be made so, and nowhere in the leases is there any reference to its replacement by the current service provider. Accordingly, will you please advise on the following: (1) Whether or not the preparation (and, presumably registration) of a Deed (or Deeds) of Variation is strictly necessary (ie what is there to vary?) and (2) In the event that they are so obligatory, what is the likely amount of legal costs, Land Registry fees and, possibly, costs of an application to FTT? FPRA Hon Consultant Roger Hardwick replies: I agree that the provision of a care line service is not a service which the landlord is obliged to provide, nor is a service for which the landlord is entitled to charge under the terms of the lease. The leaseholders would be well within their rights to refuse to pay for this service. The Landlord is obliged to use “best endeavours” to provide a “warden” to render reasonable assistance in cases of an emergency, “so far as practicable”. The term “warden” is not defined. A couple of points:

I can’t see that the landlord is able to recover the cost of providing a “warden” as a service charge. Under your lease, the tenant covenants to pay a proportion of the “expenditure on services”, which is defined as the expenditure on the matters set out in a schedule, which contains no reference to a warden (or any similar services). It may be that the exit fee exists partially for the purpose of compensating the landlord for this expense.
I can see why the landlord would want to remove the clause, particularly if there is no obligation to contribute towards the expense. An obligation to use “best endeavours” is more onerous than an obligation to use “reasonable endeavours”. It effectively obliges the covenantor to do everything possible, no matter how onerous, to perform the subject matter of the covenant. The term “so far as practicable” limits the landlord’s obligation somewhat, but in my view it would take more than the provision of a warden simply being economically or financially onerous, or awkward or impractical, to absolve the landlord. I would not recommend agreeing to the removal of this provision. I can’t see how it would benefit the leaseholders.

My firm would charge a set up fee of £2,000 plus VAT and then a further fee of £500 plus VAT per flat for preparing, completing and registering the deeds of variation. It is not possible to say how much an application to the FTT would cost. The cost would depend on a range of factors: what application is being proposed (an application to vary leases, an application to determine service charge liabilities); what, exactly, would you be asking the FTT to determine; how many applicants and respondents would there be; how many individuals would be likely to support and oppose the application... etc.? The cost could be anywhere between £15,000 - £40,000+ plus VAT, if the matter were to proceed to a full oral hearing. [Submitted December 2016]

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