I’m seeking advice on the following situation we have with our Housing Association:
- We live on an estate (all houses, no flats) with a mixture of freehold, shared ownership and housing association properties.
- For the freehold and shared ownership properties, there is a covenant in the Title Deeds that a “reasonable service charge” is payable.
- Some years ago the original Housing Association sold the freehold to part of the estate to another Housing Association.
- The sale of this area did not contain a covenant/agreement for the second Housing Association and/or residents to contribute to the service charge.
- Therefore the residents of the sold area benefit from the services paid for by the service charge, but don’t contribute towards it.
I don’t know if this can be rectified, or what angle to take if it can be. I have found the following extracts from the Fraud Act 2006, and was wondering if they might apply to this situation:
- “The second element, “abused that position”, must involve acting contrary to the financial interests of another person in a way which is made possible because of the position. It can be committed by an omission, not just a positive act. Furthermore, it does not need to result in actual gain or loss.”
- A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.
Our Housing Association impose and collect the service charge which they unilaterally set. Does this count as a ‘position of trust’? Could it be argued they have acted against our financial interest by omitting to include a requirement for a contribution from the other Housing Association? Or is there another angle we’ve missed, or perhaps another means of recourse?