OFC Land Ltd

The legal situation at Old Farm Court and Brooklands is complex with respect to the relationship between the freehold OFC property owners, and OFC Land Ltd and Brooklands Residents Association Ltd who are the freeholders of the communal land.

Residents/Owners Obligations:

In light of a very recent court case where an OFC resident was taken to court by Brooklands Residents Association Ltd for non payment of maintenance charges, we are currently updating this section.

In summary, Brooklands Residents Association Ltd (BRAL) who were represented by Jane Silsby, also known as Jane Matcham, were unable to prove their legal entitlement to collect maintenance charges and further were unwilling to prove their expenditure by providing a copy of Invoices paid. Jane Silsby stated at the hearing that Invoices to prove their expenditure were private to Brooklands.

Brooklands have always maintained that an accountants certificate is sufficient to prove their expenditure and this is not the case as Invoices and receipts are required in compliance with common law in a money claim, as stated by the Judge in this case.

The OFC resident involved in this case offered to pay BRAL on 5 separate occasions prior to the hearing, subject to sight of Invoices and Receipts to prove their expenditure, a point made by the Judge, who asked Jane Silsby why these offers had been refused.

The Judge sitting on this case was representing both the First Tier Property Tribunal and also the County Court. He suggested that the covenants should be scrapped and all the owners should come to a proper legal agreement to maintain the land properly, something the defendant in this case has been arguing for 12 years now.

An item of interest which was not documented in this case is that Brooklands who are the freeholders of the car parks, are required to ensure that OFC Residents can park in a designated parking place, that is to say on the tarmac. Should this not be the case they are not entitled to charge maintenance charges. So OFC residents who are forced to park on the grass due to a lack of parking can legally challenge maintenance charges on the basis that the benefit of the burden of charges is not being provided by the freeholder.

Positive and Negative Covenants for Freehold Properties:

Within the Transfer Document of OFC freehold properties are a set of covenants, some are negative and some are positive. Positive covenants for example are a requirement to do something such as contribute to maintenance. However positive covenants do not automatically transfer to the purchaser of a property unlike negative covenants (Restrictive Covenants). A buyer needs to contract with the seller that they will obey the positive covenants, this is called an indemnity clause and without it the previous owner of the property is still liable for any breach of positive covenants and any financial burden.

Positive covenants were discussed at the court case and the Judge was not able to determine that the respondant in this case was bound by the positive covenants.

A guide to covenants for Freehold Properties has been published by the House of Commons and a copy can be downloaded here.

The Court Judgment for this case is available for download:- click here.