First-tier Tribunal Grants Urgent Damp Eradication Works Dispensation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/18UB/LDC/2020/0109

Property

:

20 [ADDRESS] [POSTCODE]

Applicant: [redacted]

[RESPONDENT]

:

[NAME]

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(s)

:

[NAME] of Decision

:

Made on the papers without a hearing (rule 6A of the Tribunal Procedure Rules 2013 as amended by The Tribunal Procedure (Coronavirus) Amendment Rules 2020 SI 2020 No 406 L11 on 21 January 2021

DECISION

The Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works to eradicate damp in the rear garden flat including preparation and subsequent reinstatement.

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

The Applicant is required to send copies of this determination to the [NAME] of the flats concerned.

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.

2. The Applicant explains that dispensation is required for “damp works in the rear garden flat at [ADDRESS]. To include the preperation(sic) works for the contractor and the reinstatemnet(sic) works once the damp works have been completed. Based on an initial inspection the costs will exceed £250 per property.”

3. The grounds for the application are;

• [NAME] WHO HAS REPORTED THE DAMP TO REMUS IS SUFFERING FROM A SERIOUS LUNG CONDITION. THE CONDITION IS COPD. BASED ON AN INITIAL INSPECTION, IT HAS BEEN REPORTED THAT THERE IS DAMP IN THE BEDROOM, LIVING ROOM, [NAME] AND [NAME]. THE DAMP PROBLEM IS HAVING A SERIOUS IMPACT ON THE LEASEHOLDERS HEALTH CONDITON. WE WOULD THEREFORE BE SEEKING THESE WORKS TO BE COMPLETED AS A MATTER OF URGENCY. THIS APPLICATION IS IS (sic) BEING SUPPORTED BY THE LEASEHOLDERS DOCTOR, [NAME] AND [NAME], [NAME] FOR EAST DEVON DISTRICT COUNCIL.

4. A Notice of Intention was issued with an end date of 21 January 2021 to which no observations have been made.

5. The Tribunal made Directions on 4 January 2021 indicating that it was satisfied that the matter is urgent, it is not practicable for there to be a hearing and it is in the interests of justice to make a decision disposing of the proceedings without a hearing (Rule 6A of the Tribunal Procedure Rules 2013 as amended by The Tribunal Procedure (Coronavirus) Amendment Rules 2020 SI 2020 No 406 L11).

6. The Tribunal sent a copy of the Directions to the parties notified as Respondents together with a form for the Respondents to indicate whether they agreed with or objected to the application and, if they objected to send their reasons to the Applicant.

7. It was indicated that if the application was agreed to or no response was received the [NAME] would be removed as Respondents.

8. [NAME] returned the Tribunal’s form agreeing to the application. One lessee exchanged email correspondence with the Applicant but did not submit an objection to the Tribunal. As such

3 the [NAME] have been removed as Respondents in accordance with the above paragraph.

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:

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.

4 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.

Evidence

12. The grounds for the application are contained in paragraphs 2 and 3 above.

13. In the absence of any objections from the [NAME] no further submissions have been required from the Applicant.

Determination

14. 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.

15. Where damp penetration is causing health issues as described by the Applicant it is unreasonable to delay carrying out works by the adherence to the full consultation procedures of Section 20. No objections have been received from the [NAME] and no evidence of relevant prejudice as considered in the Daejan case referred to above has been identified.

16. In view of the above the Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works to eradicate damp in the rear garden flat including preparation and subsequent reinstatement.

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

18. The Applicant is required to send copies of this determination to the [NAME] of the flats concerned.

D [NAME] [NAME] 21 January 2021

5

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 [EMAIL]. 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.

2. 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.

3. 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 appeal is seeking.