First-tier Tribunal Grants Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BJ/LDC/2023/0016

HMCTS code (paper, video, audio)

P: PAPERREMOTE Property : 41-50 Prince of [ADDRESS],Prince of [ADDRESS], [POSTCODE] Applicant : [redacted] : [COUNSEL], ([COMPANY] and Director of Applicant) Respondents : [redacted] document annexed to the [NAME] :

Type of [NAME] : [NAME] for dispensation from consultation requirements Section 20ZA Landlord and Tenant Act 1985 Tribunal member : Judge Shaw Venue : Remote Paper Determination Date of decision : 23rd March 2023

DECISION AND REASONS

Decision

(1) The requirements of section 20 of the Landlord and Tenant Act 1985 are hereby dispensed with, in respect of the roof works at the property, as referred to in the [NAME]

(2) In granting dispensation in respect of the works, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.

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Reasons

The [NAME]

1. The Applicant seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (‘the Act’), for dispensation from the requirements to consult in advance of qualifying works as set out in section 20 of the Act.

Procedural History

2. This has been a remote determination on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because all the issues could be determined on the papers provided.

3. The documents that the Tribunal were referred to were provided in a bundle comprised of 54 pages. References to the bundle appear in bold square brackets below, e.g. [1].

4. The Applicant made the [NAME] on 14th January 2023. Directions were given on 26th January 2023, which included a requirement that the applicant notify the [NAME] of the [NAME] and the Directions, by delivering to them copies by email, hand delivery or first-class post. The applicant was also required to display the documents in a prominent place in the communal areas.

5. [NAME] had until 16th February 2023 to provide any notification to the Tribunal that they opposed the [NAME], and to provide to the Applicant their written reasons.

6. No [NAME] have responded to the Tribunal, and no responses or objections have been notified by the Applicant to the Tribunal.

Brief Facts

7. The property is a 19th century mansion block, containing multiple flats.

8. The Applicant seeks dispensation from the consultation requirements in respect of works of maintenance and repair involving the roof of the building, the details of which are well set out both in the [NAME] and in 2 survey reports. The first of these is a report of the [COMPANY] (which in the event was not acted upon). The second, is that of [NAME] dated 14th November 2022. It recommends extensive works and has been prepared by [RESPONDENT] [19-32]. The Respondent [NAME] have been kept informed throughout. The proposed works were put to the vote at the AGM of the [COMPANY] and were approved at that vote on 14th January 2023.

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9. The works are said to be been urgent, because of the extent of the water penetration and possible threatened integrity of the fabric of some of the building. No objections have been received in respect of this [NAME]. On the contrary, the works and the estimated cost thereof ( about £40,000) have been approved at the AGM referred to above.

The Law

10. Section 20ZA of the Act states that the Tribunal may determine that there should be dispensation from the consultation requirements set out in section 20 of the Act in respect of any qualifying works or qualifying long term agreement when ‘it is satisfied it is reasonable to do so’.

11. In [COMPANY] v Benson [2013] UKSC 14, the Supreme Court set out the following factors to be taken into account:

a) The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA (1) is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

b) The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.

c) Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.

d) The Tribunal has power to grant a dispensation as it thinks fit, including on terms, provided that any terms are appropriate.

e) The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s [NAME] under section 20ZA (1).

f) The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants.

g) The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant.

h) The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.

4 i) Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it.

Decision

12. There has been no objection or other representation received by any [NAME]. There has therefore been no assertion of relevant prejudice.

13. In light of the facts set out above, the Tribunal considers it reasonable retrospectively to dispense with the section 20 requirements in respect of the works carried out concerning the roof, such work having been identified as above.

14. In so determining, the Tribunal makes no decision on any question of the payability or reasonableness of the quantum of costs to be recharged to [NAME] through the service charge, which matters remain open to challenge by the [NAME], should they wish to do so.

Name: Judge Shaw Date: 23rd March 2023

Rights of appeal

5 By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal ([NAME]), then a written [NAME] for permission must be made to the First- tier Tribunal at the [NAME] which has been dealing with the case. The [NAME] for permission to appeal must arrive at the [NAME] 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 number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal ([NAME]).