CO-OPERATIVES. The setting of homeowner service charges. The CDS Policy CONTENTS. Policy. Appendices. Homeowners Manual; Section 3 (1)

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1 The setting of homeowner service charges The CDS Policy CO-OPERATIVES Homeowners Manual; Section 3 (1) This document describes CDS Co-operatives' policy on setting service charges for right to buy freeholders and leaseholders, shared-owners and original shared-owners who have subsequently purchased 100% of the equity in their home. CONTENTS Page Policy 1 Introduction 2 2 Objectives 2 3 Principles 2 4 Obligations under the lease 3 5 Key legislation 4 6 Service charge annual timetable 5 7 Costs included in the service charge 6 8 Sinking funds 8 9 Ground Rent 9 10 Consultation 9 11 Disputes Leasehold valuation tribunals 11 Appendices Appendix 1 Estimated service charge statement Appendix 2 Actual service charge statement Appendix 3 Standard letters Appendix 4 Disputes form Page 1 of 11

2 1 Introduction to CDS Policy CDS is a not-for-profit housing co-operatives based in London managing over 500 sold properties of which 180 are right-to-buy (RTB) flats and houses and 330 homes originally built for sale on a shared ownership basis. We are run by a voluntary committee, many of whom are or have been residents of CDS or independent housing co-operatives run by CDS. For the purposes of this policy service charge is used to mean any charge made to leaseholders, freeholders and shared owners in respect of ground rent, estate services, day to day repairs and planned and cyclical maintenance. This, however, does not include shared ownership rents. 2 Objectives The key objectives of the homeowner service charge policy are to ensure that: Service charges are accurately set in accordance with the provisions of the leases, relevant legislation, industry best practice and meet the requirements of the Housing Corporation s regulatory code. Homeowners have confidence that the charges are properly calculated and that requests for explanations or further information are responded to fully and promptly. Homeowners receive clear information about the amount of the charge, the reasons for making the charge, what the money has been spent on and the date that payment is due. 3 Principles 1. CDS aims to set all of its service charges in accordance with the relevant legislation, housing corporation guidance and best practice within the industry and act reasonably and fairly in calculating the charges. 2. Service charges will represent the cost of providing services to a particular area (such as a block or estate), plus the buildings insurance premium, the Society's administration charge and any relevant taxes, apportioned as described in the lease(s) and/or transfer deeds. Where no proportion is set in the lease CDS will seek to apportion the costs reasonably and fairly. 3. Service charges will be set according to a standard annual timetable set out below, which will ensure that homeowners are advised of their estimated charges at least one month before payment of the monthly instalments of the estimated charge is due to commence (1 st April) and of their actual charges compared to the estimate within six months of the March year end. 4. CDS aims to provide homeowners with value for money for their service charges. To achieve value for money, CDS will let service contracts through competitive tender or will establish modern partnering arrangements with suitable contractors. To confirm that value for money is being obtained, CDS will benchmark its costs against other organisations and regularly test resident satisfaction with service quality and costs. Residents will be informed of the results of service testing. 5. CDS aims to provide clear, comprehensive and explanatory service charge statements. 6. The annual estimated service charge accounts will be set based upon the prevailing level of services amended to reflect any known additional services or Page 2 of 11

3 modifications to the existing services. Every effort will be made to avoid setting service charges which result in an underpayment and the need for an additional charge at the end of the year. 7. Any over-charges to homeowners service charge accounts resulting from over estimated provisional charges will be applied (credited) to the homeowners service charge account usually in September. Some homeowners prefer to leave the credit on their account. However, upon the request of the homeowner, any credit arising will be repaid to them. 8. Any under-charges will be applied to the homeowners service charge account as soon as the actual charges are published and the under-charge will be requested from the homeowners. 9. Service charge statements will clearly identify the costs attributable to the block (the building in which the flat is situated) and the estate (the estate on which the block is located). 10. CDS will carry out major repair works where required to do so under the terms of the lease or deed of transfer which, in the opinion of the Society s surveyors, are necessary for the proper maintenance of the buildings and estates owned by the Society and the protection of the resident's collective financial interest and, where it applies, of CDS s freehold interest. Where CDS is acting on behalf of an independent co-operative, the final decision on repairs will rest with the co-op's committee. CDS will consult with homeowners as required by section 20 of the L&T Act 1985 (as amended) over the specification and cost of major repair works and on the contractor proposed to carry out the works. 11. Where provided in the lease, CDS will set up a sinking fund for each block and / or estate into which annual contributions will be made from the service charge levied. Money so collected will be used to pay for periodic re-decoration and major repairs to the block and/or estate as provided in the lease. 4 Obligations in the lease or deed of transfer to pay service charges Because leases vary from one estate to another, there is no standard wording to the clauses requiring a leaseholder to pay service charges. All leases oblige the leaseholder to pay service charges at the times and in the manner agreed in the lease. The clause below is typical of right-to-buy flat leases: Charges will comprise a reasonable proportion of costs for estate elements (including drainage, roads, footpaths, amenity spaces, grass, shrubs, trees, lighting, parking spaces, signs, communal aerials and any other communal facilities), block elements (including refuse, fire alarms, lifts, block lighting, caretaking, cleaning and any other services or provisions made for the block), garage elements and general provisions (reserve fund items and management and administration fees). Shared owners leases have similar clauses, but shared-owners are also obliged additionally to pay rent for any share in the equity still owned by CDS or the co-op. Right to buy freehold owners are also required to pay service charges by covenant though these are technically referred to as rent charges which owners, understandably, often find confusing. Page 3 of 11

4 5 Key legislation Landlord and tenant act 1985 This sets out the basic ground rules for service charges, defining what is considered a service charge, setting out requirements for reasonableness and for prior consultation of leaseholders. Section 18 (1) of the Act (as amended by the Commonhold and Leasehold Reform Act 2002) defines a service charge as 'an amount payable by a tenant of a dwelling as part of or in addition to the rent 1. which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord's costs of management; and 2. the whole or part of which varies or may vary according to the relevant costs.' The items included in (1.) are those required to be reasonable and on which a LVT may make a determination of reasonableness. (This provision does not overrule the lease. The item or service must still be included in the lease in order to be chargeable). Section 21 of the act gives leaseholders a statutory right to seek a summary of the service charge account from the landlord. The request must be in writing and can be sent direct to the landlord or to the managing agent. It can require a summary of the "relevant costs in relating to the service charges payable" in respect of the past 12 months, the accounting year. Where a landlord has received such a demand he must provide the summary within one month (or within six months of the end of the 12-month accounting period, whichever is the later) All demands for service charges must be in writing. Normally the lease will provide for the service charge payments to be issued in advance, but occasions will arise when the demands are issued after completion of the works or after provision of the service. In these cases a statutory time limit applies and the landlord must issue the demand within 18 months of incurring the cost. If the demand for payment is issued later than this, the landlord cannot recover the costs at all, unless a notice had been served during the 18 months stating that costs had been incurred and that the tenant will be required to contribute to them by payment of a service charge. Leasehold Reform Act 1993 Gives leaseholders the right to ask for a management audit where service charges are disputed on the grounds that they are unreasonably high Housing Act 1996 Gives leaseholders the right to appoint a surveyor to investigate and comment on the cost of repair works where these are felt to be unreasonably high. Commonhold and Leasehold Reform Act 2002 The act introduced controls on additional administration charges. These are defined as 'an amount payable by a tenant as part of or in addition to rent, which is payable directly or indirectly for: the grant of approvals under the lease or applications for such approvals; Page 4 of 11

5 the provision of information or documents by or on behalf of the landlord; costs arising from non-payment of a sum due to the landlord; costs arising in connection with a breach (or alleged breach) of the lease.' Any administration charge levied by the landlord must be reasonable in order for the landlord to recover the charge. The act includes a provision which will require the landlord to issue an annual summary of account (without any need for a request by a leaseholder); where the landlord fails to provide the summary the leaseholders will have a statutory right to with-hold the service charge. Section 159 of the act modifies section 20 of the L&T 1985 and requires landlords to consult before carrying out works of repair, maintenance or improvement which would cost an individual service charge payer more than 250. The landlord must, before proceeding, formally consult all those expected to contribute to the cost. If the landlord does not consult to the standard required by the act, payment of any resulting charges cannot be enforced 6 Timetable There are two prominent annual dates for the notification of service charges. In February each year homeowners will be notified of the level of the monthly charge for the following financial year commencing on 1 st April and in September each year a comparison will be made between the charge levied in the previous year beginning on 1st April and any over or under charge calculated. Service charge timetable Month Action February Homeowners will be sent the budgeted service charge for their property for the year beginning on the following 1 st April together with a copy of the service charge assessment and information on the method of payment.. 1 st April Homeowners will commence paying the revised charge for the financial year beginning on this date September February Homeowners will be sent the final certified copy of the assessment of the actual costs for the previous year ending on 31 st March. Small variation between the actual costs and the amount previously demanded will be adjusted in the service charge for the following year. Large variations will be either paid to the homeowner or, if there was an under-charge, be requested for payment by the homeowner. Homeowners will be sent the budgeted service charge for their property for the year beginning on the following 1 st April together with a copy of the service charge assessment and information on the method of payment. Page 5 of 11

6 7 Items included in the service charge The service charge will represent the costs of providing services to and maintaining the block, estate and other communal areas; the cost of insuring the block and any relevant equipment plus CDS s administration charge. Specifically the service charge will comprise charges for some or all of the following elements depending on whether the service is provided or not.: 7.1 Block services (Apportioned as per the lease usually but not always pro-rata on the number of units in the building) Routine services Cleaning service and materials (internal or external common areas) Window cleaning Bulk refuse removal including skip hire Gardening service and materials (grass cutting, weeding and pruning in communal gardens) Electricity costs (block lighting, door entry systems, fire alarms, lifts, TV aerials) Water costs (publicly accessible water point, or point used by cleaning or gardening contractor) Parking control services Laundry services Maintenance of services Fire safety equipment Lighting including bulb replacement Door entry system Parking control systems Communal TV aerial system Signs and notice boards Lifts Other routine maintenance Graffiti removal (inside and outside) Minor repairs to communal doors, walls and fences Repair / renewal of floor coverings Repairs to paving and parking areas Repairs to communal lighting (inside and outside) Minor roof repairs Unblocking gutters, pipes, sewers and drains 7.2 Estate services (Apportioned as per the lease if applicable, usually but not always pro-rata on the number of units on the estate) Routine services Cleaning (external common areas) Refuse removal Gardening (grass cutting, weeding and pruning in communal gardens) Page 6 of 11

7 Electricity costs (external estate lighting, parking control systems) Parking control services Maintenance of services Parking control systems Play areas Signs Other routine maintenance Graffiti removal Minor repairs to walls and fences Repairs to paving and parking areas Repairs to estate lighting Unblocking gutters, pipes, sewers and drains 7.3 Major repair and cyclical maintenance costs (Apportioned as per the lease - usually at block level. Costs may be recovered through a sinking fund where the lease provides for this) Redecoration of interior communal areas Redecoration of exterior common areas Renewal of windows and doors to common areas Repainting and refurbishment of flat windows and doors (sometimes) Window renewal to individual flats (sometimes) Roof repair and renewal Renewal of block and estate services (door entry system, lifts, TV Aerials, parking barriers, etc) Renewal of rainwater services including gutters, downpipes and storm drains Renewal of sewerage services including soil stacks and sewers Renewal of parking areas 7.4 Insurance (Apportioned as per the lease usually pro-rata at block level) Buildings insurance Insurance of building services (usually only lifts) It should be noted that CDS (or the independent co-op) as landlord is able to insure leasehold properties as it retains an insurable interest (i.e. the Freehold). In this case, leaseholders benefit from the discounted premiums which apply to block insurance arrangements and the insurance premium is included in the service charge However, where the owner has a freehold interest, CDS does not (normally) have an insurable interest and the owner is obliged to arrange their own insurance cover. There is, of course, no insurance premium charge in the service charge in these cases. In the case of Lindsey Co-operative, whilst the full owners have a freehold interest, the Co-op, as landlord, retains a responsibility for the on-going repair of the roofs and, as such, retains an insurable interest. In these circumstance, the co-op insures all the properties whether freehold or leasehold and a premium is included in all service charges. Page 7 of 11

8 At Dartford, owners of houses may have a freehold or leasehold interest in their properties and their properties will be included in the block or not depending on whether they are freeholders or leaseholders. 7.5 Ground rent (Ground rent fixed amount as stated in the lease) Ground Rent, which is applicable to RTB leaseholders and residents of Hillbury estate, is technically not part of the Service Charge and the legal requirements governing the collection of this charge differs from that relating to service Charges. The amount of the Ground rent is notified to leaseholders in December each year in respect of the charge for the year commencing 1 st January. For convenience, however, the Ground Rent, where it applies, is charged and paid along with the separate service charge. 7.6 Administration charges The basis of the charges to be levied on the homeowners to cover the cost of the CDS staff involved in the management and the related overheads and supervision costs are to be in line with the individual leases. It is normal for the lease to allow the landlord to make reasonable charges. The constraint on the level of charges is the norm acceptable to the LVT (Leasehold Valuation Tribunal) to whom Homeowners can appeal if they consider the costs to be unreasonable. The norm for this purpose is 15% to 20%. Subject to the requirements of the individual leases, the policy of the Society in respect of such charges will be as follows: Management of estate services 15% of the direct cost (excluding depreciation) Routine Maintenance 20% of the work cost (including vat) Service Charge computation & collection 21 per annum (equivalent to 1.75 per month); (Up from 18 in 2006/07) In addition, the Society is able to recover the cost of the auditor s fees for reviewing and certifying the annual certificate of costs though this is deemed to be a direct service cost. For the Halcyon and Furbank estates, the CDS management charge is an overall 20% in line with an arbitration judgement which was made almost 15 years ago. This method of charging for these two estates has been implemented since rather than the charges set out above. 8 Sinking funds A sinking fund represents the amount collected, usually by monthly contribution, towards future major and cyclical repair costs. Each property contributes a proportion defined by their lease and this contribution forms part of their service charge. Usually, but not always, this is the same as for estate services. Page 8 of 11

9 If the lease does not make provision for a sinking fund, with the unanimous consent of residents, CDS will seek to agree to provide for one and agree with the leaseholders a schedule of works to be paid for from the fund. However, where the lease does not provide for sinking funds or the sinking fund is restricted to cyclical redecorations, CDS (or the independent co-op) is not able to establish such funds without the unanimous agreement of all leaseholders and freeholders. The scope of the works to be included in the fund will vary from scheme to scheme. Typical items include, periodic internal communal and external redecoration and component replacements such as windows and doors. Where sinking funds are established, the amount to be collected each year will be the amount which in the opinion of CDS's surveyor's is needed to meet the expected cost of cyclical redecoration works at the date the works will be needed plus, where provided in the lease or by unanimous agreement with the leaseholders and freeholders, the amount needed to meet the expected costs of other major works at the date the works will be needed. The surveyor s opinion will be informed by periodic stock condition surveys. CDS will periodically review projected costs and the date each item will require repair or replacement. Contributions to sinking funds will be adjusted accordingly. Notional interest will be added to the fund for the benefit of the leaseholders and freeholders. Residents may ask for an explanation of their sinking fund contribution and will be provided with projected repair / replacement costs and the dates that the surveyor expects the works will be required. 9 Ground Rent Ground rent is chargeable on some, but not all, leasehold properties. Where ground rent is chargeable, this is, for reasons of practicality, included in the calculation of the overall service charge. It should be recognised, however, that technically ground rent is not a service and is subject to separate legislation. 10 Consultation Services CDS will consult with leaseholders on material proposed changes to estate services before they are implemented. Methods of consultation will include letters, questionnaires and meetings with residents as appropriate. Major and cyclical works CDS will consult with leaseholders as required by section 20 of the Commonhold and leasehold reform act Leaseholders will be asked for their views on proposed works, including the costs of the works and the contractors to be employed to carry them out. Sinking funds CDS will consult with leaseholders over the setting up of any new sinking funds, any major changes in contributions to existing funds and on any proposals for adding to or reducing the works to be paid for out of the fund. Page 9 of 11

10 11 Disputes Homeowners who dispute services charges will be invited to put their concerns in writing to be directed to the CDS Housing Services Manager. Alternatively, concerns expressed verbally to staff members should be conveyed promptly in writing to the Housing Service Manager. The Housing Services Manager will be responsible for ensuring that the homeowners received a prompt and comprehensive response. Common justifications presented for refusing to pay include: The charge for estate services does not represent value for money The quality of a service has been poor A service charged for not been received The leaseholder does not want or use the service The charge has been wrongly calculated Repair works have not been completed to the agreed standard A homeowner who formally refuses to pay part or all of a charge should be considered to be "in dispute" over their charges rather than simply as a non-payer. If a dispute arises, it is important that the homeowner clarifies precisely what the dispute is about and the amount concerned. This is often best done in writing, but may sometimes be resolved by a telephone call. The homeowner should be asked, in writing, to pay the undisputed amount while an investigation into the disputed charges is completed. No action should be taken over the withheld part of the service charge until the dispute has been considered and a formal answer provided. If the dispute cannot be resolved at this stage, it should be treated as a formal complaint and dealt with through the complaints process. Because of the range of possible causes of disputes, this policy cannot give guidance on the appropriate decision in every situation. However, when considering a complaint over the amount of a service charge, the decision should take account of the legal basis of the homeowner's case and the financial implications for CDS or the independent co-op. Some of the important points to consider when a dispute is raised include: Homeowners should not be charged for a service which has not been provided (i.e. a cleaning contractor fails to turn up for several weeks and no alternative provision is made). If there is evidence to support an allegation of complete service failure for a period, a proportionate reduction should be made. If a service is simply perceived by the complainant to be of poor quality (i.e. the contractor has not cleaned sufficiently thoroughly), it will not normally be appropriate to reduce the service charge, but rather, if the complaint is felt to be justified, to consider other measures such as replacing the contractor or increasing the frequency or length of their visits. Complaints by individual leaseholders about charges for services they perceive to be unnecessary should not be accepted unless there is a clear and valid legal basis to the challenge (i.e. the property genuinely does not have the "benefit" of a service). If there is evidence that a significant proportion of leaseholders feel a service to be unnecessary, it may be Page 10 of 11

11 appropriate to consult on whether to withdraw the service entirely or to reduce its scope and cost. If a dispute arises over a charge made as a matter of CDS policy (for instance over a decision to charge for a service on which the lease is ambiguous or contradictory), the complaint should be overruled unless it is clear that the policy is unlawful or does not represent established best practice. The complainant has the option to apply to an LVT for a ruling on the policy. 12 Leasehold valuation tribunals LVTs are part of the Residential Property Tribunal Service (RPTS) and provide an accessible and relatively informal way to resolve residential leasehold disputes. Each LVT usually consists of three members: a lawyer, who is often the chairman, a valuer and a lay person. There are five regionally based LVT offices (London, Northern, Midland, Eastern and Southern) plus one for Wales. LVT hearings are open to the public and their decisions can be seen at LVT offices. Proceedings at the LVT are semi-formal. Neither side is required to be represented by a barrister, solicitor or valuer, evidence is not given on oath and the usual court rules do not apply. However, parties appearing before an LVT may wish to seek professional advice, and it is sensible to arrange representation if the argument relates to the interpretation of the law or the terms of the lease. In cases of a technical nature, the LVT is usually assisted by expert evidence from a valuer or experienced property manager. Applicants for a determination may be long leasehold tenants, landlords or, in certain circumstances, renting tenants. The applicant pays an application fee and, where a hearing is held, a hearing fee, but after that each party normally pays their own costs. However, in some cases a landlord may be able to recover his costs under the terms of the lease. If this is the case, advice should be sought on the options available. Finally, the LVT has the power to award a limited amount of costs in certain circumstances. LVTs can determine a wide range of disputes, including: Disputes about the terms and price of buying the freehold or extending a lease Disputes about the liability to pay, and reasonableness of, a service charge, an administration charge, or an estate management scheme charge Disputes relating to building insurance Whether it would be appropriate to appoint a new manager in a block of flats Whether a residential long lease (primarily of flats) should be varied Disputes relating to the right to manage Alleged breaches of a lease prior to a landlord serving a notice under Section 146 of the Law of Property Act 1925 Whether a dispensation should be granted in respect of the consultation requirements under section 20 of the Landlord and Tenant Act Applications to LVT can be made under any relevant act, including the LR Act 1967, L&T Act 1985, L&T Act 1987, LRHUD Act 1993 or CHLR Act The LVT application fee is between 300 and 500 depending on the nature of the case. Approved by SMT: July 2007 InfoLink/Office Manuals/Homeowners Services/3Policies/2SChargepolicy Page 11 of 11

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