First-tier Tribunal Allows Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BC/LDC/2021/0070 Property : 56 [ADDRESS] [POSTCODE] Applicant : [redacted] [COUNSEL] : [NAME] Respondents : [redacted] Ms [NAME] & Mr [NAME] (Flat B) Ms [NAME] (Flat C) Mr [NAME] & Mrs [NAME] (Flat D) Type of [NAME] : For the determination of an [NAME] for dispensation from the statutory consultation requirements Tribunal Members : Tribunal Judge S.J. [NAME] and venue of Hearing : Decided on the Papers Date of Decision : 17 June 2021

DECISION

Decision of the Tribunal

(1) The Tribunal determines that the statutory consultation requirements shall be dispensed with in respect of repairs to the roof of the property.

Reasons The [NAME] 1. The Applicants seek a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) dispensing with the statutory consultation

2 requirements which apply by virtue of section 20 of the 1985 Act in respect of repairs to the roof of the property.

2. The [NAME] was made on 8 March 2021. It stated that an area of roof at the property required repair and that there was water ingress to flat B.

3. According to the [NAME] a first stage notice was issued on 1 February 2021 advising the Respondents that there were significant leaks into flat B and that carrying out the whole statutory process would result in a very unpleasant situation for the leaseholder in flat B. [NAME] were invited to put forward contractors but none did. Three quotations were obtained and shared with the [NAME] on 3 February 2021 when the second notice was also served.

4. Directions were issued on 27 April 2021. They provided that the Tribunal would determine the [NAME] on the papers in the week commencing 14 June 2021 unless either party made a request for an oral hearing by 14 May 2021. No such request has been received by the Tribunal and so this determination is made on the papers which have been provided by the parties.

5. The directions also required the Applicant to send to each of the [NAME] a copy of the [NAME] and a copy of the directions by 5 May 2021 by e-mail, hand delivery of first class post, and to display a copy of both in a prominent place in the common parts of the property. They were also to confirm by 7 May 2021 that this had been done.

6. The evidence from the Applicants is that they were not themselves aware of the directions until 10 May 2021 but that thereafter they notified the Respondents of the [NAME] via an announcement on the property portal. Their evidence is that all [NAME] are aware of the [NAME] and the directions. Whilst the timetable was not fully complied with and the method of notification may not be exactly as directed, the Tribunal is satisfied that adequate notice of the [NAME] and how to object to it has been given to the Respondents.

7. Under the terms of the directions, any [NAME] who opposed the [NAME] were required to notify the Tribunal by way of a reply form by 14 May 2021 and to send to the landlord a statement in response to the [NAME] by 21 May 2021.

8. No such replies were received by the Tribunal and no other documents have been received from any of the Respondents. 9. The relevant legal provisions are set out in the Appendix to this decision. 10. Neither party requested an inspection and the Tribunal did not consider that one was necessary, nor would it have been proportionate to the issues in dispute.

3 The background 11. The property is a block of four apartments which a Google search shows to be a converted terraced house. The Lease 12. A sample lease in respect of flat [ADDRESS] was provided. This shows that flat B was let on 28 October 1977 by [COMPANY]. to [NAME] and [NAME] for a term of 99 years.

13. By clause 4(ii) of the lease the tenant is liable to pay a quarter share of the costs set out in the Fourth Schedule. These include the costs of maintain, repairing and renewing the main structure of the property including in particular, among other things, the roof.

14. No evidence of title was produced but no issue has been raised as to the right of the Applicants to make this [NAME] and there was no suggestion from any of the Respondents that the terms of their leases did not permit the Applicants from recovering their costs of repairing the roof of the property. The Issues 15. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. The Tribunal is not concerned with the issue of whether any service charge costs will be reasonable or payable.

The Applicants’ Case 16. The Applicants’ case is that on 27 January 2021 they were informed by the leaseholder of flat B that there was a leak in a section of flat roof allowing water to enter her property. The Applicants instructed a contractor who inspected the roof on 29 January 2021. They reported that the whole of the flat roof needed to be lifted and completely renewed with a new 3-layer torch on felt system. They provided a quote of £1,350 plus VAT for the work. This would exceed the limit for the costs of works without consultation.

17. On 1 February 2021 the Applicants gave notice of intention to remove and replace the flat roof and invited observations and proposed contractors from the Respondents. They also provided a guide to section 20 of the Act and advised the Respondents that they intended to reduce the consultation period. No comments were received and no proposed contractors were put forward.

18. The Applicants then obtained quotes from two other contractors. That from the original contractor, [COMPANY] (“On Call”), was the cheapest. A statement of estimates was served on the Respondents on 3 February 2021 and they were notified that the Applicants intended to instruct On Call.

19. On Call were instructed on 3 March 2021 when the funds were in place and the works were completed on 19 March 2021. Their invoice was paid on 21 May 2021.

4 The Respondent’s Case 20. As previously explained, no objections or comments have been received from any [NAME]. The Tribunal’s Decision 21. The Tribunal is satisfied that the consultation requirements should be dispensed with. It is satisfied that the roof of the property was in urgent need of repair.

22. The Tribunal is satisfied that the [NAME] have been notified of the [NAME] and bears in mind that there has been no objection from any of them to it. It also bears in mind the limited scope of the issue before it. The purpose of the consultation requirements is to protect tenants from paying for inappropriate works and from paying more than would be appropriate for such works. It follows that the issue when considering dispensation is the extent to which the tenants are prejudiced as regards these two protections. There is nothing before the Tribunal to suggest that the [NAME] would suffer any prejudice if this [NAME] were granted.

23.

In all the circumstances the Tribunal is satisfied that it is reasonable to dispense with the consultation requirements. Name: Tribunal Judge S.J. Walker Date:

17 June 2021

ANNEX - RIGHTS OF APPEAL

• The Tribunal is required to set out rights of appeal against its decisions by virtue of the rule 36 (2)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and these are set out below.

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

• The [NAME] for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

• If the [NAME] is not made within the 28-day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed despite not being within the time limit.

• The [NAME] 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

5 number), state the grounds of appeal, and state the result the party [NAME] the [NAME] is seeking.

Appendix of relevant legislation

Landlord and Tenant Act 1985 (as amended) Section 18 (1) In the following provisions of this Act "service charge" means an amount payable by a tenant of a dwelling as part of or in addition to the rent - (a) which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord's costs of management, and (b) the whole or part of which varies or may vary according to the relevant costs. (2) The relevant costs are the costs or estimated costs incurred or to be incurred by or on behalf of the landlord, or a superior landlord, in connection with the matters for which the service charge is payable. (3) For this purpose - (a) "costs" includes overheads, and (b) costs are relevant costs in relation to a service charge whether they are incurred, or to be incurred, in the period for which the service charge is payable or in an earlier or later period. Section 19 (1) Relevant costs shall be taken into account in determining the amount of a service charge payable for a period - (a) only to the extent that they are reasonably incurred, and (b) where they are incurred on the provisions of services or the carrying out of works, only if the services or works are of a reasonable standard; and the amount payable shall be limited accordingly. (2) Where a service charge is payable before the relevant costs are incurred, no greater amount than is reasonable is so payable, and after the relevant costs have been incurred any necessary adjustment shall be made by repayment, reduction or subsequent charges or otherwise 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

6 (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate 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.] Section 20ZA (1) Where an [NAME] is made to the appropriate 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

7

“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 subject to annulment in pursuance of a resolution of either House of Parliament.