First-tier Tribunal Grants Urgent Repairs Dispensation

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/23UC/LDC/2022/0094

Property

:

[ADDRESS], [POSTCODE]

Applicant

:

[redacted]

[RESPONDENT]

:

[NAME]

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] of Decision

:

6 December 2022

DECISION

The Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the repairs to the gable end.

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 determination to all of the lessees liable to contribute to service charges.

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 on 25 October 2022.

2.

The property is described as “Retirement complex of 18 properites (sic) made up of 6 apartments and 12 cottages, the defect impacts on the grade 2 listed building where the 6 apartments are sited.”

3. The Applicant explains that “Urgent works are required to restore the integrity of the Gable end to Walton House grade 2 listed building the work is urgent in order to avoid potential collapse and significant increased costs for rectification works. The order for the works to proceed was placed with the [NAME] on Monday 24th October 2022.”

And further “ We have served the Notice of Intent dated 24/10/22 to all residents along with a covering letter explaining that we have applied for dispensation under [POSTCODE] We detailed the costs of the work, the consult level under S20 and the difference in costs for which [NAME] could be liable if challenged the consultation level is £4,496.40 the costs of the work will be £6500.00 + VAT the cost of the works will be charged to the reserve fund, in which there are sufficient sums to cover the project we have explained the cost of the works along with the formal consult level.” “due ot (sic) the urgency of the works, with a potential for the wall to deteriorate and therefore increasing costs signicantly (sic) we have placed and order for the works to be undertaken at the contractor and surveyors earliest opportunity.”

4. The Tribunal made Directions on 9 November 2022 setting out a timetable for the disposal and requiring the Applicant to send them to the parties together with a form for the Leaseholders to indicate to the Tribunal whether they agreed with or opposed the application and whether they requested an oral hearing. Those Leaseholders who agreed with the application or failed to return the form would be removed as Respondents. On 10 November 2022 the Applicant confirmed that the documents had been distributed to the Leaseholders and on 30 November 2022 that no objections had been received.

5. Six leaseholders responded all of whom agreed with the application. The lessees are therefore removed as Respondents.

3 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.

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 [NAME] 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

4 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.

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 stabilising this section of wall should not be delayed by following the full consultation procedures and the leaseholders have been kept informed of progress.

13. No objections have been received following receipt of the Tribunal’s directions indicating that the type of prejudice referred to in the [NAME] case above has been suffered. As such I am prepared to grant the dispensation required.

14. The Tribunal therefore grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the repairs to the gable end.

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

16. The Applicant is to send a copy of this determination to all of the lessees liable to contribute to service charges.

D [NAME] [NAME] 6 December 2022

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 [NAME] 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.