First-tier Tribunal Grants Landlord Dispensation From Tenant Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HN/LDC/2023/0097

Property

:

[ADDRESS] [POSTCODE]

Applicant: [redacted]

[COMPANY]

:

NMC Property

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

:

Judge J Dobson

Date of Directions

:

15th September 2023

DECISION

2 Summary of the Decision

1. The Applicant is granted 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 in respect of major works, being to the roof. The Tribunal has made no determination on whether the costs of the works are reasonable or payable.

The application and the history of the case

2. The Applicant applied by application dated 11th August 2023 for dispensation under Section 20ZA of the Landlord and Tenant Act 1985 (“the Act”) from the consultation requirements imposed by Section 20 of the Act.

3. The Tribunal gave Directions on 22nd August 2023, explaining that the only issue for the Tribunal is whether, or not, it is reasonable to dispense with the statutory consultation requirements and is not the question of whether any service charge costs are reasonable or payable. The Directions Order listed the steps to be taken by the parties in preparation for the determination of the dispute, if any.

4. The Directions further stated that Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the directions. None did. Having considered the application further and prior to undertaking this determination, the Tribunal is satisfied that a determination on the papers remains appropriate.

5. This the Decision made on that basis and following a paper determination.

The Law

6. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where the [NAME] undertakes qualifying works with a cost of more than £250 per lease the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

7. Section 20ZA provides that on an application to dispense with any or all of the consultation requirements, the Tribunal may make a determination granting such dispensation “if satisfied that it is reasonable to dispense with the requirements”.

3 8. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

9. The leading judgment of Lord [NAME] explained that a tribunal should focus on the question of whether the [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of the [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were “a means to an end, not an end in themselves”.

10. The factual burden of demonstrating prejudice falls on the [NAME]. The [NAME] must identify what would have been said if able to engage in a consultation process. If the [NAME] advances a credible case for having been prejudiced, the [NAME] must rebut it. The Tribunal should be sympathetic to the [NAME](s).

11. Where the extent, quality and cost of the works were in no way affected by the [NAME]’s failure to comply, Lord [NAME] said as follows:

“I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.”

12. The “main, indeed normally, the sole question”, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, the [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.

13. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.

14. If dispensation is granted, that may be on terms.

15. There have been subsequent decisions of the higher courts and tribunals of assistance in the application of the decision in Daejan but none are relied upon or therefore require specific mention in this Decision.

Consideration

16. The Applicant is the [NAME] of the Property. The freeholder is not involved in this application.

17. It is said in the application that the Property comprises, “A 3 storey purpose-built block of 6 flats attached to a bungalow on one common side with garden, driveway and garages.”

4

18. The Applicant explains the position as to the works as being that,

“The roof of the block of flats is leaking badly and since starting the s20 on 6th January 2023, the recent heavy downfalls are showing rapid deterioration allowing water into the top floor flats and landing. The estimates of roof repair and external decoration to achieve a scaffolding cost benefit, are in the region of £125,000 to £150,000 inclusive of all fees and VAT. We seek a dispensation to achieve a decision from all 7 parries [sic] to proceed and instruct a contractor to enable thr [sic] work to be started and hopefully completed by the end of October. Any later and the external decoration [sic] may suffer.

19. The reason why dispensation from consultation requirements is said to be required is that,

“The Directors and NMC consider that it would be in everyone's best interest to be able to finalise the choice and instruct a contractor who meets all the criteria AND is available to carry out the work within what is rapidly becoming a very short timeline, ie this year. A further winter of discontent and bad weather conditions would no doubt cause greater damage and cost.”

20. It is also explained that:

“The roof in question has leaked for many years with numerous patching repairs. It has reached its limit of life. ………………

Stage 1 notice distributed to all, Stage 2 meeting set for a few days time, hopefully to enable a decision confirming extent of works, final cost and choice of contractor. Copy attached”.

21. Hence, something of a consultation has been undertaken, although not the full process required by statute in the absence of dispensation being granted. The works are plainly significant, given the estimated cost.

22. The Leases of both Flat 1 and Flat 2 have been provided. The Tribunal has considered the lease of Flat 1 (“the Lease”). The Tribunal understands that the leases of the other Flats are in the same or substantively the same terms. In the absence of any indication that the terms of any other of the leases differ in any material manner, the Tribunal has considered the Lease.

23. The Applicant has various obligations under the Lease, principally set out in Schedule 7, including keeping the Property and all fixtures and fittings in a good state. The [NAME] is required to contribute to the costs and expenses of the Applicant complying with its obligations pursuant to Schedule 6 to the Lease, in particular clause 19 and 20.

24. Accordingly, the works fall within the responsibility of the Applicant and are chargeable as service charges.

25. There has been no response from any of the [NAME] opposing the application or indeed at all.

5 26. None of the [NAME] have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the [NAME], except for the potential delay and potential problems.

27. The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

28. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the building.

29. This decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying long- term agreement. The Tribunal has made no determination on whether the costs are payable or reasonable. If a [NAME] wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

6 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 to the First-tier Tribunal at the Regional office which has been dealing with the case by email at [EMAIL]

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.