First-tier Tribunal Grants Lease Variation for New Heating System

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AN/LVT/2020/0004 Property : [ADDRESS] [POSTCODE] Applicant : [redacted] Representative : [APPELLANT] Ms [COUNSEL] KB/R1692/1 Respondents : [redacted] application Representative : In person Type of application : To vary two or more leases by a majority Tribunal members : Judge [NAME] : 10 [ADDRESS] [POSTCODE] Paper: Remote

Date of hearing

Date of Decision :

1 December 2020

2 December 2020

DECISION

Covid-19 pandemic: description of hearing This has been a remote paper determination which has been consented to by the parties. The form of remote hearing was PAPER. A face-to-face hearing was not held because it was not practicable and all issues could be determined on the documents. The documents that the tribunal was referred to are contained in a bundle numbering 1 to 412 the contents of which, the tribunal has noted. The order made is described at the end of these reasons.

__________________ Summary decision of the tribunal (1) The tribunal grants the application for a variation of the leases held by the long [NAME] at [ADDRESS] [POSTCODE] in the form appended to this decision in Annexe I. _____________________________________________________ The application 1. In an application dated 30 June 2020 the applicant seeks a variation of all the long leases pursuant to section 37 of the Landlord and Tenant Act 1987. The background 2. In a Statement of Case dated 30 June 2020 with exhibits Tab A to Tab G and included in a bundle for hearing numbering pages 1 to 412, the applicant set out in detail the reasons for the application and the form of the variations to the leases sought. The applicant’s case 3. The applicant is the freehold owner and lessee owned company of [ADDRESS] [POSTCODE] (‘the premises’) subject property and asserts that substantial works of replacement are required to the communal heating and hot water system at the premises due to the age of the current system and the likelihood of it ceasing to properly function at some point in the foreseeable although not immediate future.

4. The subject premises comprise of three blocks made up of 212 flats in total of which 207 are held under long leases granted in or around March 1980 on similar terms. Four flats do not have leases and the lease of 1 flat is held by the applicant.

5. In its Statement of Case and accompanying exhibits the applicant detailed the extensive steps taken since 2013, to identify the most appropriate remedy and to inform the [NAME] of the intended steps to achieve the works currently estimated to cost in the region of £4m.

6. Under the terms of the current lease the applicant is obliged to provide heating and hot water to each flat. However, the system is now out of date, in need of repair or replacement and vulnerable to outbreaks of legionella as occurred in 2015. As the old pipework system cannot practically be replaced on a like for like basis a new and different from of heating and hot water has had to be explored.

7. The applicant stated that the preferred form of replacement of the heating/hot water system is a new district heating system based on Heat Interface Units (HIU) in line with best practice for residential properties. However, the current leases are incompatible with the proposed new system and variations to the lease are sought in the form provided to the tribunal to take account of all matters arising form and in respect of the transition to and the operation of the new heating/hot water HIU system referred to as the New Pipework System and the appropriate arrangements for payment during its installation until it becomes fully operational and thereafter.

8. The [NAME] were kept fully informed of the proposed amendments to the leases and each lessee was provided with a voting paper in which to record their agreement to the proposed variation to their lease. Of the [NAME], [NAME] voted in favour of the lease variation with [NAME] objecting for unspecified reasons. Evidence of this outcome was also provided to the tribunal by way of copies of the voting papers. The tribunal’s determination and reasons 9. The tribunal finds from the evidence provided that steps are required to be put in place to remedy the anticipated breakdown of the now antiquated form of the provision of heating and hot water from a communal boiler system.

10. The tribunal is satisfied that all [NAME] have been notified of the proposed variations to the lease and each has been provided with an opportunity to raise their objections to the tribunal. However, no objection to the application has been received by the tribunal.

11. The tribunal finds that the [NAME] agreeing to the variation of the leases exceeds the 155 required as the minimum. Although the proposed variations are extensive, the tribunal finds that they are necessary in order to take into account the long lead in time for the new system to be fully functional for all flats and the changes the new system will bring to the provision of heating and hot water.

12. The tribunal finds that the object of installing a New Pipework System cannot be achieved unless all leases are varied in the terms proposed by the applicant as the tribunal finds that these are beneficial to the [NAME]. Therefore, in the absence of any detailed objection to the application and with the agreement of a substantial majority the tribunal finds it appropriate to vary the leases in the terms proposed and appended to this decision as Annexe I in a PDF format which can be downloaded for a hard copy form.

Name: Judge Tagliavini

Dated: 2 December 2020

Rights of appeal from the decision of the tribunal 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 (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit. The application 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 making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).

Appendix I

Proposed Rivermead Lease Adobe Acrobat Document