First-tier Tribunal Grants Dispensation for Urgent Structural Works

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/19UJ/LDC/2021/0096

Property

:

[ADDRESS] [POSTCODE]

Applicant

:

[redacted]

:

[NAME]

Respondent: [redacted]

:

Type of Application

:

To dispense with the requirement to consult [NAME] about major works section 20ZA of the Landlord and Tenant Act 1985

Tribunal Member(s)

:

[NAME] of Decision

:

17 November 2021 without a hearing in accordance with rule 6A of the Tribunal Procedure Rules 2013 as amended by The Tribunal Procedure (Coronavirus) Amendment Rules 2020 SI 2020 No 406 L11.

DECISION

The Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works to the wall ties and cracking in the rear elevation of the property as detailed in paragraph 2 of this decision.

In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.

The Applicant is to send a copy of this determination to the [NAME].

2 Background

1. The Applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act.

2. The Applicant explains that “There has been investigation into subsidence at this property and in particular the rear extension. In order to progress this further the loss adjuster requires these works to be completed. It is imperative that these works take place in the coming months so we can address what is believed to be the real issue.” It is necessary for us to carry out works to the wall ties and cracking in the rear elevation of the property. These works are required prior to any decision being made in relation to the subsidence claim. We have employed the services of [COMPANY] ([COMPANY] to provide us with a specification and I have provided an overview of this below: • Install 8 No single bands of Helibar 60 stainless steel crack reinforcing, positioned horizontally across existing cracks • Using a metal detector, mark all existing (accessible) wall ties for isolation. • Install new remedial Dryfix wall ties to area. These are to be installed at 900mm centres horizontally, 450mm vertically with additional ties at 300mm vertical centres within 225mm of openings. • Rake out existing cracks and inject with thixotropic cementitious grout • Make good all areas of mortar disturbed by installation The cost of these works is £3422.48 plus VAT = £4106.98 We hope for these works to be completed in the next month

3. The Tribunal made Directions on 26 October 2021 indicating that the Tribunal considered that the application was suitable to be determined on the papers without a hearing in accordance with rule 6A of the Tribunal Procedure Rules 2013 as amended by The Tribunal Procedure (Coronavirus) Amendment Rules 2020 SI 2020 No 406 L11.

4. The Tribunal required the Applicant to send to the Respondents its Directions together with a copy of the Application and a form to indicate whether they agreed with or objected to the application and if they objected to send their reasons to the Applicant and Tribunal.

5. It was indicated that those [NAME] who agreed to the application or failed to respond would be removed as Respondents.

6. No replies were received and as indicated above the [NAME] have been removed as respondents.

3 7. No requests for an oral hearing were made and the matter is therefore determined on the papers in accordance with Rule 31 of the Tribunal’s Procedural Rules.

8. Before making this determination, the papers received were examined to determine whether the issues remained capable of determination without an oral hearing and it was decided that they were, given that the application remained unchallenged.

9. The only issue for the Tribunal is whether it is reasonable to dispense with any statutory consultation requirements. This decision does not concern the issue of whether any service charge costs will be reasonable or payable.

The Law

10. The relevant section of the Act reads as follows:

S.20 ZA Consultation requirements:

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.

11. The matter was examined in some detail by the Supreme Court in the case of [COMPANY] v [NAME]. In summary the Supreme Court noted the following i. The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

ii. 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.

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

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

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

4 vi. 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.

vii. 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.

viii. 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.

ix. Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. Evidence

12. The reason for the application is set out in paragraph 2 above. In the absence of any objection from the [NAME] the Applicant has not been required to submit any further evidence and the determination is made on the papers already received.

Determination

13. Dispensation from the consultation requirements of S.20 of the Act may be given where the Tribunal is satisfied that it is reasonable to dispense with those requirements.

14. No objections have been received and therefore no evidence of prejudice as referred to in the [NAME] case above has been submitted.

15. The Tribunal accepts that completion of these works is urgent before tackling the larger issue of subsidence.

16. In view of the above the Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works to the wall ties and cracking in the rear elevation of the property as detailed in paragraph 2 of this decision.

17. In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.

5 18. The Applicant is to send a copy of this determination to the [NAME].

[NAME] [NAME] 17 November 2021

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to [EMAIL] to the First-tier Tribunal at the [NAME] office which has been dealing with the case.

2. 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.

3. If the person wishing to appeal does not comply with the 28 day time limit, the 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.

4. 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.