First-tier Tribunal Grants Emergency Works Exemption

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HE/LDC/2022/0037

Property

:

25 [ADDRESS], [POSTCODE]

Applicant: [redacted]

:

-

Respondents

:

[redacted]

Representative

:

-

Type of Application

:

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

Tribunal Member(s)

:

[NAME] and Venue of Hearing

:

Determination on Papers

Date of Decision

:

27 June 2022

DECISION

2 The Application

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. This application was received on 12 April 2022.

2. The property is described by the Applicant as a two bedroom ground floor flat in a purpose built block of two flats.

3. The Applicant explains that this retrospective application relates to emergency works to a mains water supply pipe. The fault was identified and reported to [APPELLANT] by the occupants of [ADDRESS] however, due to the emergency nature of the work, there was no opportunity to carry out a formal section 20 application.

4. The Tribunal made Directions on 13 May 2022 indicating that it considered that the application was suitable to be determined on the papers without a hearing in accordance with Rule 31 of the Tribunal Procedure Rules 2013 unless a party objected.

5. 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

6. The Tribunal required the Applicant to send its Directions to the parties together with a form for the Leaseholders to indicate to the Tribunal whether they agreed with or opposed the application and whether they requested an oral hearing. Those Leaseholders who agreed with the application or failed to return the form would be removed as Respondents.

7. No other responses were received. In accordance with the above the lessees are therefore removed as Respondents.

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:

3 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).

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.

4 Evidence

12. The Applicant explains that the application relates to emergency attendance to [ADDRESS] on 8th October 2021 regarding a water leak on the mains water supply pipe shared with [ADDRESS] (unoccupied at the time). The water supply pipe runs through a duct under the building. Water was coming up through the floor of flat 25 and a replacement pipe was required as soon as possible due to ongoing water damage. There was no temporary solution available, other than to cease the water supply to the property, and therefore no opportunity to suspend the work in order to allow for consultation to take place.

13. An emergency section 50 application was also made to Cornwall Council to allow [APPELLANT]'s contractor to excavate the roadway in order to make a suitable repair.

14. The total cost of the repair was £1,953.20 exclusive of VAT.

Determination

15. 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. Guidance on how such power may be exercised is provided by the leading case of [NAME] v [NAME] referred to above.

16. In this case I am satisfied that the works were urgent and that it was not possible to conduct the consultation process.

17. As no objections have been received the type of prejudice referred to in the [NAME] case has not been identified.

18. In view of the above I am not satisfied that the failure to consult the lessees, prior to works being carried out, has resulted in prejudice to the lessees.

19. The Tribunal therefore grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the emergency works to the mains water supply pipe.

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

21. The Applicant is to send a copy of this determination to all the lessees liable to contribute to service charges.

[NAME] [NAME] 27 June 2022

5

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