“The Service Charge” means 1/33rd of the expenditure incurred by the Landlord in performance of its obligations in this lease;”
“To pay to the Landlord on the date hereof a proportionate sum on account of Service Charge to the next following 24th March or 28th September and thereafter on 25th March and 29th September in each year such sum as the Landlord shall consider is fair and reasonable on account of the Service Charge and forthwith on receipt of the Certificate (as hereinafter defined) to pay to the Landlord any balance of the Service Charge then found to be owing Provided Always that any overdue Service Charge may be recovered by the Landlord as if the same were rent in arrears.”
“[I]t is arguable that the practice of the landlord in not issuing service charge certificates showing any overpayments from previous years was relevant to the issue which the FTT was required to consider under section 19(2), namely whether the interim service charges were reasonable in amount. The applicant may not challenge the facts found by the FTT in paragraphs 77 to 79, but has permission to appeal on the role of the certificates in the contractual scheme, the sufficiency of the documents relied on and the consequences of their having been prepared without details of overpayments from previous years. Nor may the applicant challenge the FTT’s conclusion in paragraph 119 that the 2010/11 budget was reasonable, which was open to it for the reasons it gave.”
“75. None of the authorities relied on by [counsel for the appellant] [i.e. Pendra, Elysian Fields, and Clacy] establishes any principle of general application. The sole statement of principle on which he relies was from Emmet & Farrand on Title at paragraph 26.596 which cited Clacy and Elysian Fields for the proposition that “the provision of certified accounts will not generally be a condition precedent to liability to pay service charges.”
“Where a lease provides for the amount payable to be certified by the landlord’s surveyor or accountant, the issue of a valid certificate will usually be a condition precedent to the tenant’s liability to pay.”
“Clearly, at the commencement of the lease it would have been impossible for the obligation to pay the estimated service charge to be made conditional on the preparation of audited service charge accounts. In subsequent years, unless the provision of a notice of the sum payable was to be delayed until well into the year to which the sum related, it would be a practical impossibility for the Estimated Service Charge in one year to be based on the audited accounts in the immediately preceding year. The absence of proper accounts for previous years may, of course, provide grounds for treating the estimate with circumspection or even suspicion; it may make it easier to justify a reduction under s. 19(2) on the basis that there is little to suggest the estimate is reasonable; but as a matter of contract the payment of the Estimated Charge is not conditional on the provision of audited accounts.”
“(1) A tenant may make an application for an order that all or any of the costs incurred, or to be incurred, by the landlord in connection with proceedings before a court, residential property tribunal or leasehold valuation tribunal or First-tier Tribunal, or the Upper Tribunal…are not regarded as relevant costs to be taken into account in determining the amount of any service charge payable by the tenant or any other person or persons specified in the application. (3) The court or Tribunal to which the application is made may make such order on the application as it considers just and equitable.”