First-tier Tribunal Grants Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/00FF/LDC/2025/0609

Property : 67-72 [ADDRESS], [POSTCODE]

Applicant : [redacted] : [RESPONDENT]

Respondent: [redacted] : s.20ZA of the Landlord and Tenant Act 1985

Tribunal Members : Judge P. Forster Judge S. [NAME] of Decision : 23 May 2025

DECISION

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Decision

Pursuant to s.20Z of the Landlord and Tenant Act 1985, the Tribunal grants dispensation from the consultation requirements of s.20 of the Landlord and Tenant

Act 1985 in relation to the roof repairs carried out in February 2025 at 67-72 [ADDRESS], [POSTCODE].

Background

1. This is an application under s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) to dispense with the consultation requirements of s.20 of the Act. These requirements (“the consultation requirements”) are set out in the Service Charges (Consultation Requirements) (England) Regulations 2003 (“the Regulations”).

2. The application is made in respect of 67-72 [ADDRESS], [POSTCODE] (“the Property”), registered at H.M. Land Registry with title number NYK175244. The Property, located in the town of York in North Yorkshire, is described by the Applicant as being a semi-detached building comprising six apartments and internal communal areas with external parking and grounds.

3. The Applicant, [APPELLANT], is the freehold owner and landlord of the Premises.

4. The Respondents are as follows and are the long [RESPONDENT] of the flats within the Property:

5. The six flats located within the Property are subject to long residential leases. All the leases are granted on similar terms and include a covenant by the leaseholder to pay the Tenant’s Proportion of the ‘Maintenance Expenses’, as set out in Schedule 7 to the leases. The Maintenance Expenses include ‘Repairing re-building re-pointing or otherwise treating as necessary and keeping the Maintained Property and every part of it in good and substantial repair and order and condition and renewing and replacing all worn or damaged parts of it’.

6. The Maintained Property, as defined in the Second Schedule to the lease, includes the structural and external parts of the Property and specifically includes the roof of the Property.

7. In late 2024, the Applicant was made aware of extensive water ingress into communal areas of the Property. The Applicant was advised that urgent repair works were required to the roof of the Property to prevent further water ingress, and damage to the Property. The Applicant states that the water ingress was such that there was a risk to the structure of the building and to the health and safety of the residents due to persistent damp, mould growth and falling debris from the unstable roof.

8. The works in respect of which dispensation is sought is the replacement of the roof valley, replacement of broken/missing tiles and clearing the gutters (“the Works”). The Works are more particularly described in [NAME]’s invoice dated 14 February 2025, reference: [NAME]/MT/PBM/2025106 and which is included in the bundle.

9. The Applicant deemed the Works to be of an urgent nature due to the reasons set out in paragraph 7 above and appointed [NAME] to carry out the Works which were completed in February 2025 at a cost of £2,640.00 (inclusive of VAT). The Applicant also obtained another quote for the remedial work which proposed a fee of £7,824.27 inclusive of VAT.

10. The Applicant states that due to the nature and urgency of the Works it was not able to formally consult the Respondents pursuant to s.20 of the Act.

11. The Works carried out are “qualifying works” within the meaning of s.20ZA(2) of the Act and are works in respect of which each lessee will have to contribute more than £250 by way of service charge by virtue of the terms of the lease.

12. The only issue for the Tribunal to determine in this matter is whether it is reasonable to dispense with the consultation requirements.

13. The Tribunal issued directions on 17 April 2025. It considered that the application could be resolved by way of submission of written evidence but invited any of the parties to apply for a hearing if so desired. No such application has been made and the Tribunal therefore convened on 23 May 2025 to consider the application in the absence of the parties.

14. Paragraph 4 of the directions required the Applicant to send to the Tribunal and the Respondent a bundle of documents upon which the Applicant sought to rely in support of its application for dispensation. Paragraph 5 of the directions provided that any respondents who opposed the application were to submit written representations to the Tribunal. Paragraph 6 allowed the Applicant to submit a final written statement in reply before the Tribunal made its determination.

The Law

15. Section 18 of the Act defines what is meant by “service charge”. It also defines the expression “relevant costs” as:

‘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’.

16. Section 19 of the Act limits the amount of any relevant costs which may be included in a service charge to costs which are reasonably incurred, and s.20(1) provides:

‘Where this section applies to any qualifying works … the relevant contributions of tenants are limited … unless the consultation requirements have been either– (a) complied with in relation to the works … or (b) dispensed with in relation to the works … by the appropriate tribunal’.

17. “Qualifying works” for this purpose are works on a building or any other premises (s.20ZA(2) of the Act), and s.20 applies to qualifying works if relevant costs incurred in carrying out the works exceed an amount which results in the relevant contribution of any tenant being more than £250.00 (s.20(3) of the Act and regulation 6 of the Regulations).

18. Section 20ZA(1) of the Act provides:

‘Where an application 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 … the Tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements’.

19. Reference should be made to the Regulations themselves for full details of the applicable consultation requirements. In outline, however, they require a landlord (or management company) to:

• give written notice of its intention to carry out qualifying works, inviting [RESPONDENT] to make observations and to nominate contractors from whom an estimate for carrying out the works should be sought.

• obtain estimates for carrying out the works, and supply [RESPONDENT] with a statement setting out, as regards at least two of those estimates, the amount specified as the estimated cost of the proposed works, together with a summary of any initial observations made by [RESPONDENT].

• make all the estimates available for inspection; invite [RESPONDENT] to make observations about them; and then to have regard to those observations.

• give written notice to the [RESPONDENT] within 21 days of entering into a contract for the works explaining why the contract was awarded to the preferred bidder if that is not the person who submitted the lowest estimate.

Reasons for the decision

20. The Tribunal must decide whether it was reasonable for the Works to proceed without the Applicant first complying in full with the s.20 consultation requirements. These requirements ensure that tenants are provided with the opportunity to know about the works, why the works are required, and the estimated cost of those works. Importantly, it also provides tenants with the opportunity to provide general observations and nominations for possible contractors. The landlord must have regard to those observations and nominations.

21. The Tribunal had regard to the principles laid down in Daejan Investments Ltd. v Benson [2013] I WLR 854 upon which its jurisdiction is to be exercised.

22. The consultation requirements are intended to ensure a degree of transparency and accountability when a landlord decides to undertake qualifying works. It is reasonable that the consultation requirements should be complied with unless there are good reasons for dispensing with all or any of them on the facts of a particular case.

23. It follows that, for the Tribunal to decide whether it was reasonable to dispense with the consultation requirements, there needs to be a good reason why the Works should and could not be delayed. In considering this, the Tribunal must consider the prejudice that is caused to tenants by not undertaking the full consultation while balancing this against the risks posed to tenants by not taking swift remedial action. The balance is likely to be tipped in favour of dispensation in a case in which there was an urgent need for remedial or preventative action, or where all the [RESPONDENT] consent to the grant of a dispensation.

24. In the present case, it is clear the Works were necessary. Water was permeating the interior of the Property and, if allowed to persist, could have caused further damage to the Property and also, potentially, posed a health risk to the residents of the Property.

25. The Tribunal finds that it was reasonable for the Works to proceed without the Applicant first complying with the s.20 consultation requirements. The balance of prejudice favoured permitting such works to proceed without delay.

26. None of the Respondents have opposed the Applicant’s application to this Tribunal and there is no evidence to contradict that of the Applicant.

27. The Tribunal emphasises the fact that it has solely determined the question of whether or not it is reasonable to grant dispensation from the consultation requirements. This decision should not be taken as an indication that the Tribunal considers that the amount of the anticipated service charges resulting from the Works is likely to be recoverable or reasonable; or, indeed, that such charges will be payable by the Respondent. The Tribunal makes no findings in that regard and, should they desire to do so, the Respondents retain the right to make an application to the Tribunal under s.27A of the Landlord & Tenant Act 1985 as to the recoverability of the costs incurred, as a service charge.

23 May 2025 Judge P Forster

RIGHT OF APPEAL

A person wishing to appeal against this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional Office, which has been dealing with the case.

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

If the person wishing to appeal does not comply with the 28-day time limit, that person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.