There have now been 175 comments on the recent blog on the twists and turns of the Kensal Rise Library saga. It has become increasingly hard to follow the discussion so I asked Meg Howarth to write a Guest Blog on the disputed facts of the matter and what she thinks are the repercussion stemming from this. I will be happy to publish a similar Guest blog, preferably from a named person, who wishes to counter some of the factual evidence or interpretation.
As once again comments got heated I plead with people making comments to keep personal issues out of it and stick to the evidence and principles involved.
Thanks you
Martin Francis
GUEST BLOG BY MEG HOWARTH
Late addition. Brent Council Legal view on auction as sent to Friends of Kensal Rise Library on December 15th:
As once again comments got heated I plead with people making comments to keep personal issues out of it and stick to the evidence and principles involved.
Thanks you
Martin Francis
GUEST BLOG BY MEG HOWARTH
Former Kensal Rise Library (KRL) is
listed for auction in two days' time - Wednesday, 17 December. This blog is an
attempt to respond to questions, misunderstandings and concerns which are again
being raised about the Option Agreement (OA) document to purchase KRL:
- the OA allegedly came in to force on
26 November 2012 between KRL's then-owner, ASC, and property developer, Andrew
Gilick; no-one other than the seller (ASC), the buyer (Andrew Gillick) and
their lawyers has ever seen the original document. An OA is not a sale
contract - it does what it says on the tin: it's an 'option' to buy;
- a contract for the sale of KRL was
made only when Andrew Gillick exercised the option to buy contained in the
OA; this appears to have been in January 2013, and was conditional on 'vacant
possession' of KRL;
- vacant possession was secured by the
seller, ASC, only this year, on 31 January 2014, with the demolition of
the pop-up library early on the morning of 31 January;
- the sale of KRL was completed on or
immediately after that date;
- any statement that KRL was sold to
Andrew Gillick before KRL was listed as an Asset of Community Value (ACV) on 11
December 2012 is untrue;
- under ACV regulations, an OA carries
the same weight as a sale, ie if an OA is made before a listing, then ACV
regulations do not apply. This means that a listed 'asset' is exempt from the
moratorium restrictions on its sale.
Unresolved concerns about the Option
Agreement (OA) are its date and whether it was signed off. The Information
Commissioner ordered the release of the OA on 4 March 2014 after a successful
appeal against then-owner All Souls College (ASC) refusal to publish the document.
This was to be redacted for date, names and price only. I was sent a hard-copy
redacted copy of the OA on 31 March 2014. There are two problems:
- there are no redactions for the date
or the signing off of the document. Any redacted copy of the original OA
should, in my opinion and that of others, have shown clearly where those
redactions have been made, just as redactions for names and price are
clear elsewhere in the document. This LINK is to a scan of the document I
was sent
It has been posted on previous WM blogs;
- if the OA was never signed off, then
it has no legal status
A request for a meeting with Brent's CE
Christine Gilbert has been made to try to resolve these matters. With KRL slated for auction in two days
time, it's important that these doubts about the legality of the original sale
be resolved. Only a viewing of the original Option Agreement can do this.
Footnote:
There is no doubt in my mind that the
OA was drawn up to bypass the application of the ACV moratorium regulations on
ASC's sale of the library. Ironically - or not, depending on legal opinion -
paras 6.1/6.2 of the OA state:
6.1 The Seller may not create any encumbrance over the Property at any time during the Option Period without the consent of the Buyer.6.2 An encumbrance includes, without limitation, any easement, restrictive covenant, lease or other right of occupation, use or enjoyment of the whole or part of the Property but for the avoidance of doubt any listing of the premises as an asset of community value under the Localism Act 2011 is excluded.
LATE ADDITION - Letter from Farrers re signing of Option Agreement
100 comments:
Well done Meg
A good summary of the facts.
This is exactly why 2 camps have evolved : between those that dispute the whole legal basis of Gillicks purchase and claimed legal title and those in the FKRL camp who for whatever reason seem to be taking Gillick at face value and seem to admire him.
Land Registry Office are probably caught between a rock and a hard place, as they are relying on information given only by the Seller and Buyer with some documents such as ACV listing not being disclosed.
If ACV listing had been disclosed to Land Registry when legal title was exchanged, Land Registry may not have accepted the sale.
Fiona Ledden seems to have flown the nest and someone else will have to pick up the mess left behind. ACV listing seems to automatically trigger the moratorium period. It would seem in practice Local Authorities should be informing Land Registry so that Buers and Sellers can't simply circumvent the system with their own non disclosure clauses.
Has anyone contact Locality ?
http://mycommunityrights.org.uk/community-right-to-bid/
I am so angry and very upset.
We were all told Gillick would give some community space. It would have been fine if he had not decided to sell up and leave the community with nothing.
Perhaps we should have all listened to Meg. Gillick should not have been the owner of the building.
The building should have first been offered to the community.
Fully behind an investigation.
Perhaps Brent Council might like to redeem themselves by at the very least informing the Auctioneer ACV has been triggered with owner intention to sell and would the Auctioneer kindly desist from Auctioning the building until the community have responded.
What have Kensal Green ward councillors Dan Filson, Claudia Hector and Matt Kelcher done to inform Alsopp auctioneers that sale of KRL is currently illegal under ACV moratorium rules except to a registered Brent community group, preferably a local one?
I expect probably nothing since Council Officers are no longer allowed to speak with Councillors.
I hope from this Blog the elected representatives start listening to local people. They should immediately inform the Allsop Auctioneers lot 88 has an ACV listing and therefore any private individual can not bid on the offered lot until after moratorium expires.
Good point 14.52, and the same question has to be asked of Cllr James Denselow - I believe he has responsibility for 'Communities' which includes libraries. He, too, appears to have been silent on the issue of the KRL sale.
Has FKRL updated Alsopps on the moratorium? As posted on the previous blog 'Missing fortnight...', FKRL is a registered charity with legal responsibilities. A prime responsibility must surely be to prevent any attempt by Andrew Gillick to breach the moratorium conditions on the library?
So much ill-informed speculation in the comments on these threads. ACV listing does not trigger a moratorium, an owner of an ACV listed building decaring an intention to sell is what triggers it
But he did tweet congratulations today to the Preston Road library campaigners who have had their former library building now listed as an ACV. Let's hope they don't get into as much of a mess as Kensal Rise
Stop it, please.
Anon 14.09 has made a mistake, that is all. Instead of denigrating the commentator, why can't you be civil enough to inform her/him of the error, namely, as you say that it's notice of the intention to sell, not ACV-listing, that triggers the moratorium.
As you are taking such a personal interest, grateful to know if you've informed the auctioneers that KRL is protected from sale on Wednesday by the ACV legislation you're so quick to cite, except to a community interest group? If not, why not?
If you read the legislation I would argue a listing also triggers a moratorium for 6 months, exactly to prevent the ssituation were the community asset has been sold underneath everyone's feet.
secretary of State Eric Pickles should be contacted if Brent Councillors do not inform auction house about ACV.
He was fairly useless with previous request for a review on diferent grounds, but perhaps with an election not far away, he might be a bit more accommodating. The ACV legislation might be discredited if property owners can still do as they please, even with an ACV listing.
Excellent point, 17.06, and something I hadn't sussed. Will now read the legislation again.
As for 16.25 - the tone of the commentator is deeply to be regretted, and offensive. S/he seems intent on mischief-making, jumping on 14.09, and then speaking of 'ill-informed speculation in the comments'.
Link to ACV legislation section 2 a iii http://www.legislation.gov.uk/ukdsi/2012/9780111525791/regulation/2
My interpretation of this clause, if a listing is accepted restrictions on disposal would commence for 6 months.
All Souls College should have then notified their intention to suspend the sale with Gillick.
So unless you can claim otherwise there are restrictions that apply.
If ACV listing did any good they wouldn't let you etc etc.........
Agree, Anon 17.54, ditto with the Localism Act. That is why an Option Agreement was (belatedly, I believe) given the same weight as a sale in preventing the ACV moratorium-period kicking in. Who knows? Perhaps ASC lobbied Pickles' department...?
Is it true that James Denselow has the leadership of Brent Council in mind?
I don't know what you're all reading but 16.25 is correct. The link to the legislation above refers to a "notice" this means a notice of intention to dispose of the land.
Hundreds of buildings have been listed under this legislation but very few have actually been purchased simply because very few have actually put up for sale
And here is the link to 95 (2) of the Localism Act cross referenced above which clearly states the notice is of the intention to dispose of the land, not the initial listing.
http://www.legislation.gov.uk/ukpga/2011/20/section/95
It does seem on my reading. As follows on listing building and accepting the listing restrictions on disposal apply for 6 months. Plus on notice to sell, there is an 18 month moratorium.
This is definitely worth a challenge.
This seems to be why people are confused.
The problem with accepting another developer is there is no gurantee they will live up to their obligations.
What happens if a new buyer sits on the land and does nothing ?
Land banking is a huge problem in London and has partly caused the shortage of housing.
It would be far better to accept a new developer is unlikely to give much away, so the community is in a winning position if we rally together and seek a review of the original sale.
It will not look good for ASC in any event.
We can't give up now.
Hilarious! James Denselow tweets congratulations to Preston Road library campaigners on the ACV-listing of their building while remaining completely stum re the auction of the KRL building during an ACV moratorium period.
And Cllr Denselow expects to win credibility by such a stance...? Of such double-standards...
And here is Cllr Denselow's tweet in all its misguided glory...
'Cllr James Denselow @cllrjdenselow · 23h 23 hours ago
"Good news that Preston Road Library site has been listed as a asset of community value by @Brent_Council"
At least he didn't cc @savekrlibrary...
How about tweeting the Auctioneers telling them they can't sell the building as ACV has been triggered and community has to be given opportunity to purchase first.
Is there a bus going to the auction tomorrow?
Maybe All Souls will buy the library back?
A builder will buy it and we will have a library in 6 months.
QED
Is anyone attending tomorrow's auction? Details below, nearest tube station Marble Arch:
17th December 2014 Auction
Venue
The Cumberland Hotel,
Great Cumberland Place,
London
W1H 7DL
Start Times
Auction Announcements: 9.45 a.m.
Session 1: Lots 1-262 10.00 a.m.
Is this where FKRL will make a grand stand, denouncing the sale as in breach of ACV moratorium regs, thereby hoping to win plaudits for itself?
Guide price has gone up to £1.25m PLUS now!!!
There must be strong interest......
Mr Gillick will be eating well this Christmas... Capitalist BXXXXX
Its not complicated.
There is a 6 month Moratorium. 18 months is the period the owner can sell to anyone thereafter.
Have you read the auction conditions? Completion does not occur until May 2015, guess what? That's 6 months!
Also ACV does not apply if the building is not sold with vacant possession and guess what? It isnt! it is being sold with the occupiers in situ and it was sold by ASC with the tenants in situ at the time too.
You can call me bright but i just have the ability to read the information in front of me.
May i suggest you and Meg read the auctioneers legal pack because clearly you haven't.
Anon 13.37
How would a 'builder' be a Brent community interest group in accordance with ACV moratorium regs on sale?
Just to cheer everyone up: when auctioneers accept the final bid for an item, even a nice old building, it's called 'knocking it down'.
I shall wear my mink coat.
I'm making two bets. The new owner will seek to modify planning permission to remove the obligation for community space and the library. And second, Cricklewood will go the same way.
Exactly why Brent Council should be contacting auctioneer and advising of the ACV.
Anon 14.44
Trust you'll attend tomorrow so you can report back.
What's the betting that a hitherto unknown 'community group' will rear its head at tomorrow's auction?
Speaking of which, cross-posting below from previous blog as a clear cross-over exists between Gillick's Kensal Properties Ltd and Trehaven Group Ltd, the mortgagee named on S106 Deed of Agreement. The following is from http://companycheck.co.uk/company/08363625, public information about Andrew Gillick's Kensal Properties Ltd:
'16/06/2014 Miss R.S. McKinnon has resigned as company secretary'.
This would appear to be the same person listed as a former director of Trehaven Group Ltd, the mortgagee named in the S106 Deed of Agreement:
'Miss Rebecca Sarah Elizabeth Mckinnon
Born 32 years ago: Jan 1982
Company Secretary, Chartered Accountant
15 Sep 2008 — 25 Mar 2014 (5 years, 6 months, 10 days)'
Retired'
(public information obtained from the DueDil website).
A small point: 32 years old seems pretty young to retire...
Was wondering that myself, Anon 13.36. Will make a change from return journeys to the Civic Centre. And will cllrs Denselow and Mashari be on board...?
With the rouble still sliding and capital controls not yet in place in Russia, there's bound to be an oligarch or two looking for a property purchase.
Anon 15.32 - suggest you call your ward cllrs/cllr Denselow and demand such action.
GUIDE PRICE IS NOW £1.25m
Re your first point, Alison - reckon you're correct. S106s are being contested up and down the country as property speculators/developers seek to renege on already-existing agreements.
I would ask people to show reserve tomorrow.
Last thing we need is to destroy our chances with the new owner before we have even started.
Odds on favourite.
There was a viewing day there today and over 10 parties went in and out.... crazy demand and they will love the delayed completion until May 2015.
I am thinking it will go north of £1.5m
Wonder if the show Homes Under the Hammer are sniffing around. Its a great show.
He's in Barbados so unfortunately cannot make the auction apparently
ASSET OF COMMUNITY VALUE LEGISLATION DOES NOT APPLY IF A PROPERTY IS OCCUPIED....
WHAT A BARN DOOR!!!
As FKRL have indicated they would like to be considered a bidder delayed completion date is actually May 2016.
Oh another person that cannot read...
May 2015 !!!!
Now its not that challenging...
What !!! Gillick is claiming his security guards have occupyied the building !
This just gets worse and makes a mockery of the law.
???????????????!
Afraid it does work that way.
Best of my knowledge the building has been occupied now for 2 years, by live in guardians...
And the fact there was the Pop up there means that ACV legislation never applied....
Sorry to be the bearer of bad news but that is the legislation.
In fairness to Gillick he is delaying completion to allow the community to put a bid together.
He also has arranged a knees up in the Island tomorrow night and put a "few bob" behind the bar.
What do you think the law is for?
The relationship of the law, Gillick and the property in this case is exactly the same as the relationship of the security guards, Gillick and the property.
I will be away from internet access this evening so will catch up with moderating comments later.
In view of letter dated 15/12/2014, did All Souls College inform Brent Council as soon as practical on 26/11/2012 of their intention to dispose of property to Mr Gillick ?
The moratorium period is very clear on this point as per the below copy text from the legislation A - C conditions have to be satisfied for a disposal to be lawful. The onus is on the owner / seller to immediately inform the Local Authority of "their intention to sell."
It would seem All Souls College may not have specifically informed Brent Local Authority of their intention to sell, given the claimed date of signing the option agreement and therefore it would be an "Unlawful Sale." It would seem All Souls College never informed Brent Council of their intention to sell, so Brent Council could not then action an interim moratorium and formally publish a notice advising of the intended disposal.
===
http://www.legislation.gov.uk/ukpga/2011/20/section/95
95Moratorium
(1)A person who is an owner of land included in a local authority's list of assets of community value must not enter into a relevant disposal of the land unless each of conditions A to C is met.
(2)Condition A is that that particular person has notified the local authority in writing of that person's wish to enter into a relevant disposal of the land.
(3)Condition B is that either—
(a)the interim moratorium period has ended without the local authority having received during that period, from any community interest group, a written request (however expressed) for the group to be treated as a potential bidder in relation to the land, or
(b)the full moratorium period has ended.
(4)Condition C is that the protected period has not ended.
===
All Souls College may argue the OA was signed before formal listing of ACV and therefore there was no reason to inform Brent Council of the intention to sell, but from the Farrer statement "In the case of many agreements where there are schedules following the main body of the agreement the parties signing the agreement did so after the schedules and not immediately after the statement "As witness the hands of the duly authorised signatories on behalf of the parties".
It would seem from the Farrer statement, "only the schedules are signed and not the option agreement itself." The legitimacy and therefore legality of the OA is therefore called into question, if as it seems it is not witnessed and signed where it should be signed and may not hold up in a Court of Law as a valid contract.
A condition of the sale by ASC was vacant possession (Option Agreement, para 11). Perhaps you would care to read it for yourself.
Absolute rubbish. Occupation or non-occupation has no bearing on ACV, the test is community use.
This link sets it out very very clearly. I suggest everyone reads it before commenting and spreading further hysteria and misinformation
http://mycommunityrights.org.uk/wp-content/uploads/2012/04/Step-2-read-more.pdf
It seems pretty clear to me that there are people on this thread posting misinformation eg, regarding the moratorium period and the ACV validity. Posting comments on an interpretation of the law with absolutely no citation is just just an attempt to wind people up and feed conspiracies. We have enough bad practice to challenge without people throwing in red herrings
I do not think anyone is intentionally winding people up.
I think many people are trying to be extremely helpful so we can all better understand what and how the law works in practice.
New laws are generally always challenged and it seems All Souls College and Gillick have pushed the boundaries.
The community now needs to push back.
Have a look at what a relevant disposal is.... I will give you a hint look for the words vacant possession
Looks to me they stuck to the letter of the law.
Clearly says acv applies to vacant possession only
Please show me the tenancy agreement for whoever os occupying the building
Note to the person/s commenting that the Lot has been withdrawn from tomorrow's auction, could you supply evidence? It is still on the Auctioneer's website.
The crucial question regarding 'vacant possession' must be whether occupation by security guards in a non-residential property is the same as an occupied 'residence', which can't be an ACV.
If occupation of any kind means a sale can go ahead, it makes a mockery of the whole ACV/Localism legislation - and a lot of empty properties are let on short-term tenancies via security companies.
This could be the opportunity for 'the community to push back', as Anon 23.05 suggests.
Separately - there remain unresolved questions about the date on the Option Agreement.
Excellent point, 23.21.
It seems as if Brent Council's seriously understaffed legal department may have been too quick to accept Andrew Gillick's solicitor's claim that the building is not in vacant possession. Does a security guard make a residence?
The Option Agreement seems very suspect and in reality could be signed by anyone.
ASC and Gillick can't we wriggle out of this one.
A security guard is a caretaker, not a leaseholder or a tenant. The building is currently vacant. If anyone has proof of a lease which would prevent vacant posession then lets see it.
I agree with the poster above that someone is just trying to spread misinformation or cause trouble by throwing in random suppositions presented as facts.
I could guess at who they are and what their motive is but I'm going to keep that speculation to myself as that's all it is - speculation.
There are now three 'official' versions of the date and signature pages of the Option Agreement in circulation. Not all can be true copies of the original.
Only a viewing at All Souls solicitor's Farrer can establish which is a true copy and resolve the ongoing concerns about the legitimacy of the document.
If Solicitors acting for All Souls College claim in letter the date is 26/11/2012 a there are other copies of thé agreement thén some is telling porky pies.
We have already Has allégés fraudulent emails and therefore this Option Agreement between All Souks Collège and Gillick nerfs to be investigated.
Did Gillick inform Brent he was proceeding with Auction and ACV should not apply for the following reasons ? :
The building is occupied and therefore outside scope of ACV
Gillick is clearly flauting the law by offering at Public Auction a building with an ACV listing, regardless of the fact completition is scheduled in 6 months time. Gillick is basically saying in not so many words "Fait Accompli !"
A tenancy can be verbal. Are there people in the building? Does any one know?
Has anyone asked Mr Gillick. I am sure he will tell you.
Indeed squatting is possession hence ACV does not apply.
So by putting up the Pop Up library we shot ourselves in the foot. As it was not Vacant Possession and the building (including land) was occupied in part.
Even if the auction sale is completed in 6 months the auction happening today constitutes a binding agreement as a deposit will need to be paid and this is in breach of ACV regulations.
Do we have definite confirmation that it is the "vacant possession" rule that is allowing ACV to be circumvented or is this just speculation?
Don't make me laugh !
Squatting is now deemed to be security guards agreeing to keep out the squatters !
The only way to stop this sale would be a last minute court order. It seems like we've all wasted too much time arguing and speculating on here to have organised one
The auction room is busy and a hive of activity.
Very slick operation and the TV cameras are here.
There is a 6 week moratorium together with a 6 month moratorium.
Even if a Sale is concluded, the devil is in the detail. A purchaser might find in the small print the sale is not what it is seems.
Might be easier for a purchaser to pullout of contract, once they find there are questions surrounding Gillicks original contract of sale.
A greedy purchaser might then take recovery action against Gillick if any purchaser looses out.
This seems a better way forward than spending money on an injunction.
With Russia collapsing we are coming into Financial Crisis part 2. In a few months time, a buyer might be glad to get out of the sale contract, particularly if we see London property prices falling reasonably dramatically. People assume it will not happen, but we are already seeing the cracks appearing.
Greece is also collapsing with possibility of a snap election if todays vote does not go well.
It will be 2008 all over again. So hold onto your seats, as the show has only just begun.
By this standard if I stood on the doorstep of the building it would be deemed "occupied"!
Just an update from Auction Lot 21 flat in Wembley sold for £260,000. However lot 25 flat in Belsize did not sell and still available with guide price £325,000
To achieve any type of yield on development once developed the 5 flats alone would not be enough if for example you could get around £300,000 for each flat. For Gillick to achieve a guide price of £1.25 million a devellopment would only yield £1.5 million assuming you get £300K per flat. Any developer is going to simply renegotiate and put more flats in the D1 area to make up the shortfall in redevelopment costs.
That is the harsh reality, so I would not be confident of the D1 space remaining.
Auction Live Stream
http://www.auction.co.uk/residential/home.asp?LV=T
£300,000 for a newly developed flat in Kensal Rise? What planet are you on!!!
What do you think that is cheap ?
£300,000 That is the kind of price needed without even developing the property.
As the above suggests the D1 space will be lost as any developer will simply renegotiate so that he can sell more flats and realize cost of purchase and redevelopment.
I agree with the above the D1 space is lost as the economics do not add up otherwise for any buyer.
The auction is going to be screened on Homes Under the Hammer. Date tbc.
Not sold
Top bid £1.2 million
No mention of ACV restrictions.
Not sold. Guide price not met.
Despite the claim of high interest in the sale, it would seem being economical with the option agreement, got a few potential buyers asking questions. Hence a last minute hurried document from Farrer, (All Souls College solicitors).
Seems to have dampened enthusiasm, as there were few bids in reality. Even then they did not achieve the guide price of £1.25 million
A 1 bd in that location is more likely £4-500,000
Bet you it is sold after nice and quietly
But discussion invited by the auctioneer to take place outside the room between Alsopps staff and the two £1.2m bidders.
Well any buyer will be in for a shock, once they realize there is a dispute with the option agreement and Gillick is not the proud owner after all.
Perhaps the 2 bed might achieve a higher price, but it does seem in London from the auction results the market has reached a peak.
The reality is ordinary people are priced out and can't afford it. Particularly if we get an interest rate rise next year.
Russia has just had to increase interest rates to over 17%
People in the UK should expect interest rates to start climbing.
Looks like the building will simply sit idle for many years to come. It is now unlikely Gillick will spend any money and redevelop, as he had originally promised if he can't find a buyer.
you would if you refused to move.
And guess what unless the building is used for residential purposes it is not even a crime!
Does Alison Hopkins have any more predictions? I'd love to know.
Not really a good result for FKRL.....
Agree the building will just me mothballed now and left on the back burner while the developer goes off and does other deals....
In any revision to ACV legislation there should also be a community fine. Compensation to the community if an owner does not abide by the requirements, such as informing a Local Authority of a sale or for example markets and advertises the sale of a listed property, during the moratorium period. The fine should be equal in value to any assessed s106 and CIL.
Owners can't simply secure compensation when owners themselves seem to try and bend the law for their own profit.
Who raised the guide price from £1.2m to £1.25m, and why?
Sell the company that is my advice to Mr Gillick.
BTW that is not covered by ACV legislation either.
Give it back. Give ... it ... back.
What ! you honestly think any purchaser would have been interested in giving the ground floor to D1 community space.
This is a good win for the community.
I have nothing to add on this topic. I just wanted the comments to reach a nice round hundred.
S. Claus
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