Lexsure e-ROT

Service Charges · Report on Title scenario

Should money be held back for the service charge when I complete?

It depends on whether anything is likely to come back to bite you, and it is a real choice rather than a formality. Service charges are usually paid on account and reconciled after the year end, so a bill for the seller's period of ownership can arrive months after you own the flat — and the landlord will come to you for it. A retention holds some of the purchase money against that. A clean break does not, and costs less.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure master Report on Title paragraph: Retention for Service Charge (fee applies) · See the wording

Why a bill for someone else's year reaches you

Most leases work on estimates. You pay on account during the year, the landlord prepares accounts after the year end, and any difference is adjusted. If the actual spend exceeded the estimates, a balancing charge follows.

That charge is demanded from whoever owns the flat when it is demanded — you — even where the expenditure belongs to the seller's period of ownership. The seller is normally obliged to refund their share. Obliged is not the same as reachable, and once they have your money and moved on, recovering it can be difficult.

Already bought, and a bill for the seller's year has arrived?

If you were not offered a retention, or were not told what one was for, what was explained during your purchase is a reasonable place to start.

Find out what should have been explained → WhenIBought.com

The two answers, and what each one costs

<b>A retention.</b> A sum is held back from the purchase money by the solicitors until the final accounts arrive, then distributed. It is the safe answer. It carries a fee, because accounts are often not finalised for a long time after completion and somebody has to correspond with the landlord, the agent and both sets of solicitors until they are.

<b>A clean break.</b> Nothing is held back. You take the risk of an excess charge and you take the benefit if the charges come in under budget. No fee, no loose end, no months of correspondence.

<b>A clean break allowance.</b> The middle answer: no retention, but the seller gives you a sum on completion against the estimated excess. It settles the money at the table.

How to decide

The question is the history. Where the accounts show no pattern of excess charges and the managing agent reports no unusual works, a clean break is usually the proportionate answer. Where there is a history of excesses, or works are in prospect, the retention — or an allowance measured against it — is there for a reason.

Ask for the last three years of service charge accounts and ask the agent directly whether anything unusual is pending. Both are routine requests, and they turn the decision into arithmetic rather than instinct.

Separately from all of this, the ordinary apportionment of service charge and ground rent happens on completion in any event, and cannot be calculated until a completion date is agreed.

From the e-ROT archive

Report on Title paragraph

Retention for Service Charge (fee applies)

Master precedent Lexsure e-ROTScope Retention against clean breakWord count 216Status Current master paragraph

It is not always necessary to agree to a retention and the circumstances should be considered carefully. Increasingly, the alternative of a “clean break” is being preferred by buyers and sellers. For example, if there is no history of excess service charges and the Managing Agents advise that there have been no unusual works that might affect the regular charges, it might be more appropriate to have a "clean break". Another example would be where there has been a history of excess service charges and the Managing Agents advise that a sum of money be set aside as a retention, here the seller and the buyer could agree an allowance by the seller in the buyer’s favour on completion for an estimated proportion of the recommended retention amount.

The “clean break” method avoids the additional work and additional costs involved with a retention. The buyer takes the risk that there might be an excess charge arising, or that the excess service charge proves to be greater than anticipated, but the buyer takes the benefit if the actual service charges prove to be under budget, or if the excess charges prove to be less than the excess charges anticipated, in which case a refund or crediting of the overpaid service charges is made in the buyer’s favour. …

Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly, including its mixture of curly and straight quotation marks around “clean break”. It is professional precedent wording and is not advice about any particular property.

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