At his suggestion, some of his formal advice (some may not be formal enough to be in a publicly available site) is being put on this page.
Latest first. Text in red font contains more interesting pieces of advice.
Underlining indicating interesting text (excl in contents list immediately below
I have read this and you can reproduce the para as mine, regards, Marshall Levine
"These documents like the Land Sale Agreements are binding on successors in title which will include future purchasers of the freehold land and leaseholders of the flats. So, all persons who own Talacre whether freehold or leasehold are subject to these agreements."
These documents like the s.106 first and second agreements, and Land Sale Agreements are binding on successors in title which will include future purchasers of the freehold land and leaseholders of the flats. In addition, with s.106, these are land charges and binding on the land as such. So, all persons who own Talacre whether freehold or leasehold are subject to these agreements. There is no escape unless Camden cancel the agreements which they will not do. They also will not pursue the obligations owed to them including collecting their reward and payment.
What more can I say?
Marshall Levine
You can use it
Regards
Marshall Levine
Dear Marshall
Thanks, that is really helpful and I think the way you replied comes across well.
I would like to send it to various people like the 2 Councillors, perhaps more, the dozen or so people who I keep informed in detail of how its going, usually weekly etc. And including the CNJ being able to quote from it.
Do you have any objection and/or would you like me to refer to it as "informal advice" or anything similar.?
Nick
please see comments in yellow below below [Now shown in red as highlighting not available here]
regards
Marshall Levine
-----Original Message-----
From: Nick Harding <njhnw5@gmail.com>
To: Marshall Levine <sclevine@aol.com>
Sent: Sun, Oct 25, 2020 5:30 pm
Subject: Talacre Overage - some legal issues
Dear Marshall
Talacre Overage
The plan is to write to all 50+ Councillors if we don’t find we are likely to get the rather loosely promised summary etc from the two councillors and some kind of reply as to what counsel(s) were asked and how they responded etc. All the evidence has been that Camden would like this to go away, rather than try to recover £ms. Thus we probably need to be proactive..
So, the more we can reduce the legal uncertainties, the better. I therefore thought I would set out what I see as our legal questions, including my amateur opinion, where I have one!
1. Is there a risk that the Statute of Limitations will prevent us from proceeding in the UK?
NO RISK for the foreseeable future because one or more of these apply NO RISK
(a) The debt became due according to an FOI reply on 21.8.15 which is just over 5 years ago
(b) The contract was for the sale of land, and was under seal? Therefore, the relevant period is 12 years and not 6 years? 12 YEARS
(c) Camden has claimed from Hazlemere, since the due date and therefore the start date is later that 21.8.21 or 21.8.26 I don't know
2. Does the fact that Hazlemere is a BVI registered company, (address 3rd Floor, J & C Building, P O Box 933, Road Town, Tortola), affect Camden’s ability to sue in England if an Expert were to award Camden an amount of overage? SUING IS POSSIBLE FOR CAMDEN
NO. Hazlemere has two addresses at least in this country. The Talacre residential block and Nicholas & Co of 18-22 Wigmore Street, London W1U 2RG, their solicitors. If you can’t sue someone, corporate or otherwise, because they are nationals of another country, the rule of law would hardly exist. The issue surely is enforcement. YES I AGREE
3. Enforcement. If an expert awards Camden a sum, Hazlemere fail to pay and the English court confirms it is a legal debt, enforceable in England what can stop Camden going for repossession in the same way as for example, several of the leaseholders who are foreign citizens, can be sued and have their leases forfeit if they fail in their mortgage repayments? FORFEITURE IS VERY UNLIKELY
CAMDEN would have similar rights to that of eg a lender LENDERS WILL DEFEND ANY CLAIM OR WILL TAKE OVER CLAIM- TALKING TO LENDERS IS KEY
4. What is the situation on prior charges and similar ALL CHARGES ARE WORTH INVESTIGATING
NOT a threat to Camden’s rights since Hazlemere’s lender (Santander UK PLC per recent Land Registry search) should have been aware of the content of the sale agreement when they lent. Incidentally, I contacted a number of solicitors and lenders (? I can check if it is important) warning of the onerous features of the contractual situation, albeit mainly to do with the s106 obligations which affect both freeholder and leaseholders. FIRST CHARGE TAKE PRIORITY
5. Is the project that was built, sufficiently similar to the one described in the sales contract, for an expert to be able to opine and award? YES I THINK SO
DIFFICULT. I may have Camden’s opinion around the time of contract start or completion since I was asking questions which probably included this one. But that would at best give us Camden legal dept’s view at the time which may have been wrong.
6. If the Owner/Hazlewood refuses (probably continues to refuse from what it sounds like).to co-operate in the process of appointing the Expert, can that frustrate the appointment of any Expert? YES IT WOULD BE AN OBSTACLE
NO, or if it can, Camden lawyers should be struck off as the disputes clause would clearly be totally useless. THE KEY IS TO GET CAMDEN TO TRIGGER THE EXPERT CLAUSE
7. Does the fact that the contractor, whose expenses are deductible in the overage assessment, was owned by the then owner, make any difference?
NO. Except to make the Expert perhaps more alert than otherwise to dubious claims of costs made by the owner. However, any RICS expert should be aware of the realities of such a situation whoever owned the contractor, THIS IS FOR THE EXPERT TO DECIDE AND CHOICE OF EXPERT
8. Who pays the cost of the Expert?
Surely, if Hazlemere refuse to co-operate and an amount of overage is awarded to Camden, it would be added to that amount? That doesn’t mean there isn’t a risk the Expert wouldn’t require costs to be split. THE EXPERT'S COSTS WILL NEED TO BE FUNDED IN ADVANCE
9. Counsel’s opinion is often quoted to be subject to legal privilege. Does that prevent Camden, if it so chooses from releasing it and its TOR? Or does it need permission from Counsel? If both parties are prepared for it to be released, is there anything preventing itbeing released. WE NEED TO GET IT IF WE CAN
Camden need to be urged to move forward AND DECIDE TO CLAIM ITS OVERAGE
Yours Nick
Dear Sirs
We have read the Conditional Sale Agreement under which Camden sold property adjoining Dalby Street on 19th April 2005 to Trac Properties Ltd
We note from a Freedom of Information response dated 26.June.2009 that "The overage provisions are contained within the Conditional Agreement for Sale dated 19 April 2005"
We are of the view that should any overage be due to Camden, the liability rests upon the existing owner regardless as to where it is domiciled. Further that should the existing owner fail to pay such overage, Camden would be able to sue in the English courts and, in the event of the defendant failing to pay any sum awarded to Camden, Camden would be entitled to take steps to recover it, including foreclosing on the property.
Yours faithfully, Marshall Levine, Marshall F. Levine & Associates/PPP Legal Advisors
[Extract from email of 20.6.12 from Marshall Levine to the Borough Solicitor of Camden on the position of solicitors advising clients. Mr Levine was a partner in Linklaters and now owns the Legal Café in Haverstock Hill, Camden. He has followed the development closely since 2008. He is not and was not then advising any of the buyers].
“I am advised that between 10.1.06 and 30.9.08 the Supplementary s106 including its schedules which deal with access to Talacre Sports Centre and the park was the subject of a public enquiry and much correspondence involving the Mayor of London and Sport England. The result was a document which purports to protect the public amenity. Anyone having a future interest in the land would be likely to be particularly concerned with the impact of many of the clauses not least those which require marshals to manage access to the extent required by the Council for all time. In my view, those obligations are so onerous that a solicitor would have difficulties in advising his client to buy a flat, lender to lend on the security of a flat/provide a mortgage loan or similar with respect to mass purchase of flats”.