First-tier Tribunal Grants Fire Alarm Upgrade Dispensation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference :

MAN/00BR/LDC/2021/0015 Properties : [NAME], [ADDRESS], [POSTCODE]

Applicant : [redacted] : [APPELLANT].

Respondents : [redacted]

Type of Application : Landlord and Tenant Act 1985 – s.20ZA

Tribunal Members : Judge P [NAME] [NAME] of Decision : 16 July 2021

Date of Determination : 26 July 2021

DECISION

© CROWN COPYRIGHT 2021

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Decision

Compliance with the consultation requirements of s.20 of the Landlord and Tenant Act 1985 is dispensed with in relation to urgent works to upgrade the fire alarm system.

Reasons

Background

1. The First-tier Tribunal received an application on 2 March 2021 under s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) for a decision to dispense with the consultation requirements of s.20 of the Act. Those requirements (“the consultation requirements”) are set out in the Service Charges (Consultation Requirements) (England) Regulations 2003 (“the Regulations”).

2. The application was made by [APPELLANT]. on behalf of [NAME]) [APPELLANT]. (“the Applicant”), in respect of [NAME], [ADDRESS], [POSTCODE] / [POSTCODE] / [POSTCODE] / [POSTCODE] (“the Property”). The Respondents to the application are the long leaseholders of the flats within the buildings. A list of the Respondents is set out in the annex hereto.

3. The only issue for the Tribunal to determine is whether it is reasonable to dispense with the consultation requirements.

4. The application identifies the subject Property as two purpose built blocks containing 212 apartments.

5. The work in respect of which a dispensation is sought is the upgrading of the existing fire alarm system.

6. The works are urgently required because the fire policy has been changed from “stay put” to “simultaneous evacuation” due to defects with the external façade. In order to support a simultaneous evacuation policy, a walking watch has been introduced as an interim measure until the current fire alarm system can be extended. The cost of the walking watch is £3,643.20 per week. This cost will continue to be incurred until the new fire alarm system is installed.

7. s.20 Part 1 notices were issued to the Respondents on 5 February 2021. The Applicant has advised the Respondents that dispensation will be sought to allow the works to commence urgently. The Applicant has obtained quotations from [NAME]. It is the Applicant’s intention to proceed with the most cost effective solution.

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8. The proposed works are “qualifying works” within the meaning of section 20ZA(2) of the Act.

9. On 25 March 2021, the Tribunal issued directions and informed the parties that, unless the Tribunal was notified that any party required an oral hearing to be arranged, the application would be determined upon consideration of written submissions and documentary evidence only. No such notification was received, and the Tribunal therefore convened on the date of this decision to consider the application in the absence of the parties. The directions included at paragraph 5 a provision that required the Applicant to write to each of the Respondents informing them of the application and providing them with information about the application process. The Applicant’s representative confirmed by email on 10 June 2021 that this had been done.

Grounds for the application

10. The Applicant’s case is that it is necessary to undertake these works quickly to adequately protect the occupants of the apartments in the two blocks and to mitigate the costs of the walking watch. By implication, the Applicants case is that the works relate to common parts of the Property which the landlord is obliged to maintain under the terms of the leases, with the costs associated therewith being recoverable from the tenants via service charge provisions incorporated within the leases. The Tribunal was provided with a specimen copy of the deed of covenant and a specimen copy of the lease relating to apartment 2503.

11. The Applicant asks the Tribunal to grant dispensation in respect of the works, which it considered to be so urgent as to warrant avoiding the additional delay that compliance with the consultation requirements would have entailed.

The Law

12. 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.

13. 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 section 20(1) provides:

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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.

14. “Qualifying works” for this purpose are works on a building or any other premises (section 20ZA(2) of the Act), and section 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 (section 20(3) of the Act and regulation 6 of the Regulations).

15. 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.

16. 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 leaseholders 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 leaseholders 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 leaseholders.

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

• give written notice to the leaseholders 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.

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Conclusions

17. The Tribunal must decide whether it is 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, the reason for the works being undertaken, 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.

18. The consultation requirements are intended to ensure a degree of transparency and accountability when a landlord (or management company) 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.

19. 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 have been 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 leaseholders consent to the grant of a dispensation.

20. In the present case there is no doubt that the works were necessary and pressing for the occupiers of the apartments. The Tribunal finds that it is reasonable for these works to proceed without the Applicant first complying in full with the s.20 consultation requirements. The balance of prejudice favours permitting such works to have proceeded without delay.

21. In deciding to grant a dispensation, the Tribunal has had regard to the fact that no objections were raised by the Respondent leaseholders in compliance with the Tribunals Directions of 11 October 2019.

22. The Tribunal would emphasise the fact that it has solely determined the question of whether or not it is reasonable to grant a retrospective 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 Respondents. The Tribunal makes no findings in that regard and, should they desire to do so, the parties

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will 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 service charges.

16 July 2021 Judge P [NAME]

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[NAME] and [NAME] [NAME] 1001 [NAME]

[COMPANY] 1002 [NAME]

[NAME] 1003 [NAME]

[NAME] and [NAME] 1004 [NAME]

[NAME] & Gridhar Naidimamidi 1005 [NAME]

[NAME] & [NAME] 1006 [NAME]

[NAME] 1007 [COMPANY] 1007A [NAME]

[COMPANY] 1007B [NAME]

[NAME] & [NAME] [NAME] [NAME] 1008 [NAME]

[NAME] 1009 [NAME]

[NAME] [NAME] 1010 [NAME]

[NAME] [NAME] & [NAME] 1011 [NAME]

[NAME] 1011A [NAME]

[NAME] & [NAME] 1012 [COMPANY] 1013 [NAME]

[NAME] 1013A [NAME]

[NAME] 1013B [NAME]

[NAME] [NAME] 1013C [NAME]

[NAME] & Eniola Iyabode Adelak 1013D [NAME]

[NAME] [NAME] 1014 [COMPANY] 1015 [NAME]

[NAME] & [NAME] 1015A [NAME]

[NAME] [NAME] 1016 [NAME]

[NAME] 1017 [NAME]

[NAME] 1018 [NAME]

[NAME] [NAME] 1019 [NAME]

Ms [NAME] 1019A [NAME]

[NAME] [NAME] 1019B [NAME]

[NAME] 1019C [NAME]

[NAME] & [NAME] 1020 [NAME]

[NAME] [NAME] [NAME] 1101 [NAME]

[NAME] [NAME] [NAME] 1102 [NAME]

[NAME] [NAME] 1103 [NAME]

[NAME] [NAME] 1104 [NAME]

[NAME] & [NAME] 1105 [NAME]

[NAME] [NAME] 1106 [NAME]

[NAME] and [NAME] 1107 [NAME]

[NAME] & Gemma A Marasigan 1108 [NAME]

[NAME] 1109 [NAME]

[NAME] & Mrs [NAME] 1110 [NAME]

[NAME] & [NAME] 1111 [NAME]

[NAME] 1112 [NAME]

[NAME] [NAME] & Ms [NAME] 1113 [NAME]

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[NAME] 1114 [NAME] [NAME] 1115 [NAME]

[NAME] 1116 [COMPANY] 1117 [NAME]

[NAME] & [NAME] 1118 [NAME] [NAME] 1119 [NAME]

Miss [NAME] 1120 [NAME]

[NAME] 1121 [NAME]

[NAME] 1122 [NAME]

[NAME] [NAME] & Mrs [NAME] 1123 [NAME] [NAME] [NAME] [NAME] 1124 [COMPANY] 1125 [NAME]

[NAME] [NAME] 1126 [NAME]

[NAME] 1127 [NAME]

[NAME] 1128 [NAME]

[NAME] [NAME] 1129 [COMPANY] 1130 [NAME]

[NAME] [NAME] & [NAME] 1131 [NAME] [NAME] 1132 [NAME]

[NAME] & [NAME] 1201 [NAME]

[NAME] [NAME] & Mrs [NAME] 1202 [NAME] [NAME] [NAME] & [NAME] 1203 [NAME]

[NAME] R [NAME] ' & [NAME] R [NAME] 1204 [NAME] [NAME] [NAME] & [NAME] [NAME] 1205 [NAME]

[NAME] 1206 [NAME]

[NAME] [NAME] 1207 [NAME]

[NAME] [NAME] 1208 [NAME]

[NAME] 1209 [NAME]

[NAME] 1210 [NAME]

[NAME] 1211 [NAME]

[NAME] [NAME] 1212 [NAME]

[NAME] [NAME] [NAME] 1213 [NAME]

[NAME] [NAME] 1214 [NAME]

[NAME] [NAME] 1215 [NAME]

[NAME] [NAME] 1216 [NAME] 1217 [COMPANY] 1218 [NAME]

[NAME] & [NAME] 1219 [NAME] [NAME] [NAME] [NAME] & [NAME] 1220 [NAME]

[NAME] [NAME] 1221 [NAME]

[NAME] [NAME] 1222 [NAME]

[COMPANY] 1223 [NAME]

[NAME] [NAME] 1224 [NAME]

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[NAME] [NAME] 1225 [NAME]

[NAME] [NAME] 1226 [NAME]

[NAME] [NAME] [NAME] 1227 [NAME]

[NAME] [NAME] 1228 [NAME]

[NAME] [NAME] & [NAME] 1229 [NAME]

[NAME] 1230 [NAME] [NAME] [NAME] 1231 [NAME]

[NAME] [NAME] 1232 [NAME]

[NAME] [NAME] 1301 [NAME]

[NAME] 1302 [NAME]

[COMPANY] 1303 [NAME]

[NAME] 1304 [NAME]

[NAME] [NAME] 1305 [NAME]

[NAME] [NAME] [NAME] 1306 [NAME]

[NAME] 1307 [NAME]

[NAME] [NAME] 1308 [NAME]

[NAME] H [NAME] 1309 [NAME]

[NAME] [NAME] 1310 [NAME]

[NAME] [NAME] 1311 [NAME]

[NAME] [NAME] [NAME] 1312 [NAME]

[NAME] [NAME] 1313 [NAME] [NAME] [NAME] 1314 [COMPANY] 1315 [NAME] [NAME] [NAME] 1316 [NAME] [NAME] 1317 [NAME] [NAME] [NAME] & Mrs [NAME] 1318 [NAME] [NAME] [NAME] 1401 [NAME]

[NAME] [NAME] 1402 [NAME]

[NAME] & [NAME] [NAME] [NAME] 1403 [NAME]

[NAME] [NAME] 1404 [NAME]

[NAME] & [NAME] 1405 [NAME] [NAME] and [NAME] 1406 [NAME]

[NAME] [NAME] & [NAME] [NAME] [NAME] 1407 [COMPANY] 1408 [NAME]

[NAME] 1409 [COMPANY] 1410 [NAME]

[NAME] & Jennifer E [NAME] 1411 [NAME]

[NAME] and [NAME] [NAME] 1412 [NAME]

[NAME] [NAME] 1413 [NAME]

[NAME] [NAME] 1414 [NAME]

[NAME] 1501 [COMPANY] 1502 [NAME]

[NAME] 1503 [NAME]

[NAME] 1504 [NAME]

[NAME] 2001 [NAME]

[NAME] & [NAME] 2002 [NAME]

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[NAME] 2003 [NAME]

[NAME] & [NAME] 2004 [NAME] [NAME] [NAME] & [NAME] 2005 [NAME] 2006 [NAME]

[NAME] 2007 [NAME]

[NAME] 2008 [NAME]

[NAME] [NAME] [NAME] 2009 [NAME]

[NAME] 2010 [NAME]

[NAME] & [NAME] 2011 [NAME]

[NAME] & [NAME] 2012 [NAME]

[NAME] [NAME] & [NAME] 2101 [COMPANY] 2102 [NAME]

[NAME] 2103 [NAME]

[NAME] [NAME] & Mrs [NAME] 2104 [NAME]

[NAME] [NAME] 2105 [NAME]

[NAME] [NAME] 2106 [NAME]

[COMPANY] 2107 [NAME]

[NAME] [NAME] 2108 [NAME]

[NAME] [NAME] [NAME] 2109 [NAME]

[NAME] 2110 [NAME]

[NAME] 2111 [NAME] & [NAME] 2112 [NAME]

Ms [NAME] 2113 [NAME]

[NAME] & [NAME] 2201 [NAME] [NAME] [NAME] K [NAME] & Mrs [NAME] [NAME] 2202 [NAME] [NAME] 2203 [NAME]

[NAME] 2204 [NAME]

[NAME] [NAME] 2205 [NAME]

[NAME] 2206 [NAME]

[NAME] [NAME] [NAME] & Mrs [NAME]

2207 [NAME] [NAME] & [NAME] 2208 [NAME]

[NAME] and Iman Ali 2209 [COMPANY] 2210 [NAME]

[NAME] 2211 [NAME]

[NAME] & [NAME] 2212 [NAME] [COMPANY] 2213 [NAME] [NAME] [NAME] [NAME] 2301 [NAME] [NAME] 2302 [NAME] [NAME] [NAME] P W Wall & Mrs [NAME] 2303 [NAME] [NAME] 2304 [NAME] [NAME] [NAME] & [NAME] A [NAME] 2305 [NAME] & Co. 2306 [COMPANY] 2307 [COMPANY] 2308 [NAME]

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Ms [NAME] 2309 [NAME] [NAME] [NAME] J [NAME] 2310 [NAME] [NAME] [NAME] P W Wall & Mrs [NAME] 2311 [NAME] [NAME] 2312 [NAME] [NAME] 2313 [NAME] [NAME] and [NAME] 2401 [NAME] [NAME] 2402 [NAME] [NAME] 2403 [NAME] [NAME] [NAME] & [NAME] 2404 [NAME] [NAME] & [NAME] 2405 [NAME] [NAME] & [NAME] 2406 [NAME] [NAME] [NAME] [NAME] 2407 [COMPANY] 2408 [NAME] [NAME] 2409 [NAME] [NAME] 2410 [NAME] [NAME] [NAME] 2411 [NAME] [NAME] [NAME] 2412 [NAME] Ms [NAME] 2413 [NAME] [NAME] 2414 [NAME] [NAME] [NAME] 2501 [NAME] [NAME] [NAME] [NAME] 2502 [NAME] [NAME] & [NAME] 2503 [COMPANY] 2504 [NAME] [NAME] [NAME] [NAME] 2505 [NAME] [NAME] & [NAME] 2506 [NAME] [NAME] [NAME] 2507 [COMPANY] 2508 [NAME] [NAME] [NAME] and [NAME] [NAME] 2601 [NAME] [NAME] 2602 [NAME] [NAME] 2603 [NAME] [NAME] [NAME] 2604 [NAME] [NAME] [NAME] A Khokhar & Mrs [NAME] Y Khokhar 2701 [NAME] [NAME] [NAME] & Ms [NAME] [NAME] 2702 [NAME] [COMPANY] 2703 [NAME] [NAME] & [NAME] 2704 [NAME]