RTMF defeat Avon Freeholds at First-tier Tribunal

Milton House, in Newton Abbot, Devon is one of five retirement estates acquired in 2010 by Avon Freeholds and managed by Y&Y, companies associated with the Messrs Gurvits and Moskovitz and much criticised for their poor management and general disregard for resident’s well being. Their RTM Claim Notice was served in April 2014, with 97% of leaseholders in support and members of the RTM Company.

True to form Avon Freeholds served a Counter-Notice alleging numerous procedural failures that it claimed prevented RTM, including the allegation that deceased partners should either become members of the RTM Company, and/or be given a notice of invitation to participate and further, that the membership consent forms signed by residents were invalid because they had been signed before the company was incorporated.

Unsurprisingly, when it came before the Tribunal Avon dropped its frivolous argument over deceased leaseholders. On the membership issue the Tribunal rejected the submissions of the Avon’s barrister, Oliver Radley-Gardner preferring the legal arguments put forward by RTMF solicitor and leaseholder champion Margarita Mossop. The Tribunal accepted the evidence of RTMF Director Dudley Joiner that pre-incorporation consent forms fulfilled the function of RTM company membership applications.

The Tribunal stated “it therefore seems churlish to the Tribunal to accept the Respondent’s argument that the Memo and Arts of the RTM company must be strictly interpreted so that a consent form, in the form of the consent forms used in this case, cannot be utilised, post incorporation of the RTM Company, as evidence of an application for membership of it”.

The Tribunal also found it puzzling that on the one hand Mr Radley-Gardner relied upon a date error in the Register of Members as evidence it was inaccurate, yet on the other hand argued that the Register was not admissible as evidence.

Milton House resident and RTM Director Mike Rutherford said the result was “brilliant and so well done in spite of the aggressive approach taken by the landlord’s barrister”.

Dudley Joiner has issued a word of caution. He said “although residents should be encouraged by this result, they should be aware of Avon’s litigious record in other cases and brace themselves for an expected appeal to the Upper Tribunal”.

The first Avon Freeholds estate to engage the RTMF was Regent Court and their claim notice was served in March 2011. They faced similar objections and it took over two years for their claim to be favourably determined by the President of the Upper Tribunal, who found that procedures had been substantially complied with and agreed with Margarita Mossop that it was not Parliament’s intention that the whole right to manage process should be automatically defeated by an inadvertent failure to comply with a statutory procedure.

The second of the five estates to approach RTMF was Elim Court, again back in 2011. Avon Freeholds raised tenuous objections in that case, and with the help of expensive lawyers has managed to avoid RTM for three years. The case is now heading to the Court of Appeal.


Other Posts