Emergency Repairs Approved Without Full Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT 2021

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : BIR/00FY/LDC/2021/0001 HMCTS Code : P:PAPERREMOTE Property : 1A Barker Gate, Nottingham, [POSTCODE] Applicant: [redacted]

Respondents : [redacted] Mr [APPELLANT] Mr [APPELLANT] Mr [NAME] Mr [NAME] Ms [NAME] of Application : Application under section 20ZA to dispense with consultation requirements for erection of scaffolding and repairs following water ingress Tribunal Members : Mrs [NAME] Mr [NAME] and venue of Paper Determination : 1 March 2021, decided on the papers. Date of Decision : 4 March 2021

DECISION

Covid-19 pandemic: description of hearing: This has been a remote hearing on the papers which has been not objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to- face hearing was not held because it was not practicable, and all issues could be determined on paper.

Decision of the tribunal I. The tribunal grants dispensation in respect of the erection of scaffolding and repairs following water ingress to the premises known as 1A Barker Gate, Nottingham, [POSTCODE]

II. The Tribunal orders that details of the cost together with an estimate of the service charges payable by the leaseholders shall be provided to the leaseholders within 28 days, if not already done so.

The Application 1. 1A [APPELLANT] [COMPANY] (‘The Applicant’), by an application dated 10 February 2021, sought dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘The Act’) from all of the consultation requirements imposed on the landlord by section 20 of the 1985 Act1.

2. 1A Barker Gate, Nottingham [POSTCODE] (‘The Property’), which is the subject of the application, is a 5 storey mill conversion containing 6 leasehold units.

3. The Applicant is the management company for the property. Although there is no specific detail provided by the Applicant it is noted from lease details provided that the long leaseholders in the property may also be members of the Applicant company.

The Background 4. Directions were given in writing on 16 February 2021, for the progress of this case. 5. By 19 February 2021 the Applicant Was to notify each leaseholder of the application

1 See Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987)

Provide a copy of the application plus these directions Provide a statement explaining the purpose of the application and the reason why dispensation is sought Provide copies of any specialist reports obtained (if any) together with any quotes received and other appropriate material 6. By 26 February the leaseholders should send any response to the Tribunal.

7. The Applicant was to provide a digital, indexed and paginated PDF bundle for the Tribunal and any leaseholder who had opposed the application or requested a copy of the bundle. 8. [NAME] also provided that the application could be determined on the basis of written representations. However, any Respondent was given the option of making a request for a hearing by 26 February 2021. Neither the Applicant nor the Respondents have requested a hearing, and the Tribunal are satisfied that there is sufficient information before it to enable it to decide this matter without injustice to any party without a hearing. 9. [NAME] further stated that the Tribunal would not inspect the Property but, where necessary, will rely upon any plan and photographs provided by the parties. The Applicant’s case 10. The Applicant is the management company of the subject property, being a converted mill in the centre of the Lace Market, Nottingham.

11. The Respondents are the lessees of the 6 flats in the property.

12. Recently it was noted that there was a leak from the main roof into the top floor apartment.

13. Arrangements were made for scaffolding to be erected as an emergency so that the roofing contractor could repair the roof leak and prevent further damage to the building and the apartment.

14. By undated statement but assumed to be around 10 February 2021, the Applicant informed the Respondents of the intention to carry out works and that an application was being submitted for dispensation from consultation. An initial letter had been sent out prior to this explaining the situation.

15. Works started 17/18 February 2021.

16. It is assumed that these works have now been completed. 17. The Tribunal notes that there have been three leaseholders who have supported the application for dispensation from full consultation. No objections have been received.

The Tribunal’s decision 18. The Tribunal has decided that it is reasonable to dispense with the statutory consultation requirements of section 20 of the Act in relation to the repair works at the Property in February 2021. Reasons for the decision 19. The Tribunal, in reaching its decision, had to consider whether it was reasonable to grant dispensation. The relevant statutory provisions are found in subsection 20ZA (1) of the 1985 Act under heading “Consultation Requirements: Supplementary”. That subsection reads as follows: “Where as application is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long-term agreement, the Tribunal may make the determination if satisfied it is reasonable to dispense with the requirements”.

20. The Tribunal find that the Applicant was unable to consult fully under section 20 due to the urgent nature of the work and the time need to carry out a full, section 20 consultation exercise.

21.

Accordingly, the Tribunal is satisfied the consultation procedure ought to be dispensed with. This decision of the Tribunal is limited to the need to consult under section 20 of the Landlord and Tenant Act 1985 for this work. Given this, the parties attention is drawn to the fact that the Tribunal have not made a determination on the reasonableness and payability of the service charges under Section 27 A of the 1985 Act for this work.

22. The Respondents will, of course, enjoy the protection of section 27A of the 1985 Act so that if they consider the costs of the work are not reasonable (on the grounds set out above or any other ground) they may make an application to the tribunal for a determination of their liability to pay the resultant service charge.

Appeal

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

3. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal, and state the result the party making the application is seeking.

[NAME] of relevant legislation

Landlord and Tenant Act 1985 Section 27A (1) An application may be made to a leasehold valuation tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to a leasehold valuation tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment. Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) a leasehold valuation tribunal.

(2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined.]

1. [POSTCODE] Consultation requirements: supplementary (1) Where an application is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long- term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements. (2) In section 20 and this section— "qualifying works" means works on a building or any other premises, and

"qualifying long term agreement" means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months. (3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a) if it is an agreement of a description prescribed by the regulations, or (b) in any circumstances so prescribed. (4) In section 20 and this section "the consultation requirements" means requirements prescribed by regulations made by the Secretary of State. (5) Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the [COMPANY] representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the [COMPANY] to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the [COMPANY] in relation to proposed works or agreements and estimates, and (e) to give reasons in prescribed circumstances for carrying out works or entering into agreements. (6) Regulations under section 20 or this section— (a) may make provision generally or only in relation to specific cases, and (b) may make different provision for different purposes. (7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. [...]

2. The relevant Regulations referred to in section 20 are those set out in Part 2 of Schedule 4 of the Service Charge (Consultation etc) (England) Regulations 2003.