First-tier Tribunal Grants Lift Refurbishment Dispensation Without Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/18UK/LDC/2023/0031/AW

Property

:

Blocks One and Two Westbeach Resort, [ADDRESS], Westward Ho! Bideford, Devon, [POSTCODE]

Applicant: [redacted]

:

[RESPONDENT]

Respondent: [redacted]

:

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

:

[NAME], Regional Surveyor

Date of Decision

:

18 April 2023

DECISION

The Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the refurbishment of two lifts.

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 decision to Decision to the lessees.

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. The application was received by email on 9 March 2023.

2. The property is described as “Purpose built apartments for holiday use only. Two blocks of 24 apartments (48 apartments in total) located adjacent to one another, both with a lift serving each floor. The two blocks are of different design with one having four floors and the other having five floors.”

3. The Applicant explains that;

“The works include the modernization of two lifts. One was not functioning at all whilst the other was having persistent faults that rendered it practically unusable. The refurbishment of both were undertaken between May and December 2022. Work had to pause during the busy North Devon holiday periods.

There has been no formal consultation carried out however all [RESPONDENT] were informed when work was to be undertaken.

Dispensation is being sought as the work had to be carried out because the apartments are for holiday use only and having a non-operational lift and one being unreliable was affecting the [RESPONDENT] and their paying guests ability to use the apartments as designed and envisaged. The work was overdue as there had been a change of managing agents at the beginning of 2022. Quotes from four contractors were used and the cheapest contractor was instructed.”

4. The Tribunal made Directions on 15 March 2023 setting out a timetable for the disposal. The Tribunal required the Applicant to send them to the parties together with a form for [RESPONDENT] to indicate to the Tribunal whether they agreed with or opposed the application and whether they requested an oral hearing. Those [RESPONDENT] who agreed with the application or failed to return the form would be removed as Respondents although they would remain bound by the Tribunal’s Decision.

5. The Applicant confirmed that the Directions had been sent to the Respondents on 24 March 2023 and on 10 April 2023 that no objections had been received.

6. 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.

3 7. 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.

The Law

8.

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.

9.

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.

a. 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.

b. 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.

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

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

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

f. 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.

g. 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

4 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.

h. 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.

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

Evidence

10. The Applicant’s case is set out in paragraphs 2 and 3 above.

Determination

11. 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.

12. Clearly maintaining lift access is important to the enjoyment of the property by its occupiers and should not be unduly delayed by following the full S.20 consultation procedures. [RESPONDENT] were kept informed and the cheapest of four quotes accepted. In this case no prejudice has been identified by the Lessees and as such the Tribunal is prepared to grant the dispensation required in respect of the works to refurbish two lifts.

13. The Tribunal therefore grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the refurbishment of two lifts.

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

15. The Applicant is to send a copy of this decision to Decision to the lessees.

[NAME] 18 April 2023

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 Regional 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.