First-tier Tribunal Grants Urgent Repairs Dispensation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AU/LDC/2021/0080 HMCTS Code : P:PAPERREMOTE Property : [ADDRESS], [POSTCODE] Applicant : [redacted] : [COMPANY] Respondents : [redacted] Flats 1-8, and the ground floor flat of [ADDRESS], [POSTCODE] Type of [NAME] : An [NAME] for dispensation from the consultation requirements of s.20 Landlord and Tenant Act 1985 Tribunal member : Judge D [NAME] and venue of hearing : [ADDRESS], LondonWC1E 7LR Date of decision : 6th July 2021

DECISION

2 Covid-19 pandemic: description of hearing This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to- face hearing was not held because it was not practicable and no-one requested the same and all issues could be determined on paper. The documents that I was referred to are in a bundle of 37 pages, the contents of which I have noted. The order made is described at the end of these reasons. Decision

1. The Tribunal grants the applicant dispensation from the statutory consultation requirements in respect of works required at [ADDRESS] [POSTCODE] ("The building") to resolve urgent leaks from the guttering causing damage to the building.

2. Dispensation is granted on the condition that the applicant is to bear its own costs of this [NAME], which should not be passed on to leaseholders.

Background

3. The property comprises nine flats. No detail is provided, although a photograph [22] shows the frontage of a brick-built building with shops at ground floor level.

4. The tribunal did not inspect the property as it considered the documentation and information before it in the appeal bundle enabled the tribunal to proceed with this determination and also because of the restrictions and regulations arising out of the Covid-19 pandemic.

5. This has been a paper hearing which has been consented to by the parties. The tribunal had before it an electronic/digital trial bundle of 37 pages of documents prepared by the applicant, in accordance with previous directions.

6. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all the consultation requirements imposed on the landlord by section 20 of the 1985 Act, (see the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987), Schedule 4.)

7. The request for dispensation concerns urgent repairs to guttering at the front of the building which is leaking into the top floor flat. The [NAME] is said to be urgent because the leaks are said to be causing rotting to the left-hand side of the building and this “has led to a potential health and safety risk to the residents living in the flats”. No

3 estimated costs of the works were provided with the [NAME] dated 24th March 2021. Nor was any inspection report provided.

8. Included within the [NAME] was a notice of intention, dated 24th March 2021, to carry out works at the property in accordance with the s.20 consultation procedure. That notice states that the works to be carried out are “Guttering works”. The justification given in that notice for those works are “In light of the condition of the external common parts of the Building and further given the covenants set out below, the Company deems necessary to carry out the above-mentioned work Please finally note the wording of paragraph 2 of the Fourth Schedule of the leases of the flats within the Property which require and allow the Company to carry out the abovementioned works: “At all times during the term hereby granted to maintain the Reserved Premises in good and substantial repair and condition… [NAME] good all necessary renewals and replacements as may be required thereto.” keep the foundations external walls and… the exterior of Building in good substantial repair”

9. Although the tribunal has been provided with a list of the various leaseholders of the 9 flats in the building, none of the individual leases have been provided. The only lease provided relates to the headlease for 26,28 and [ADDRESS], Islington. This is dated 6th May 1980 between [COMPANY] (“[NAME]”) and [COMPANY], named as the Association, who makes this [NAME] as the Management Company. All the obligations detailed within the copy lease provided relate to the relationship between [NAME] and the Management Company. It does not specify the leaseholders’ obligations.

10. The [NAME] failed to provide an inspection report or any quotation for works. However, included in the bundle of the documents provided by email on 28th June 2021, is a letter dated 25th February 2021 headed “Montdore House – Roof / Guttering Repairs” from [COMPANY], addressed to [NAME[NAME] at Ringley.

11. That document cannot be described as an inspection report. The letter written by [NAME] states that he “writes with reference to my recent site visit with the director of the development to view the areas of concern”. He writes that on the day of the visit the weather was fine such that “it was not easy to point out the defects with the gutters”, but fails to report on what date the visit took place. Mr [NAME] states that the “most important thing is stopping the leak into 2nd floor flat the only way to inspect and repair the roof is with the use of scaffolding”.

12. Although the roof is mentioned by Mr [NAME], his photograph points to guttering, a down pipe, a problem with a concrete window “seal” coming away and an area above a window with he calls a “roof leak”.

13. On 25th May 2021 the tribunal issued directions. These included a direction to the applicant to send to [NAME] leaseholder (or residential

4 sublessee) a copy of the [NAME] with the direction. The applicant was also instructed to display a copy of both the [NAME] and the directions in a prominent place in the common parts of the Property by 3rd June 2021 and to confirm this direction had been complied with by 7th June 2021 by emailing confirmation to the Tribunal.

14. On 1st June 2021 an email was received from [NAME] at [NAME] which confirmed only “We hereby confirm that direction no.1 has been complied with today. The [NAME] and directions have been emailed to all of the owners”. No mention was made in relation whether or not the [NAME] and the directions had been displayed in a prominent place in the common parts of the building.

The leaseholders’ case

15. None of the leaseholders have objected to this [NAME], although the tribunal were not satisfied that the directions had been fully complied with. Specifically, there is no evidence that the [NAME] with documentation has been displayed in the common parts.

Reasons for Decision 16. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether or not service charges will be reasonable or payable.

17. Having read the evidence and submissions from the Applicant and having considered all of the documents and grounds for [NAME] the [NAME] provided by the applicant, the Tribunal determines the dispensation issues as follows.

18. Section 20 of the Landlord and Tenant Act 1985 (as amended) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake major works, where a leaseholder will be required to contribute over £250 towards those works, to consult the leaseholders in a specified form.

19. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by such an [NAME] as is this one before the Tribunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

20. The leading authority in relation to s.20ZA dispensation requests is [COMPANY] v Benson [2013] 1 WLR 854 (“Benson”) in which the Supreme Court set out guidance as to the approach to be taken by a tribunal when considering such applications. This was to focus on the extent, if any, to which the lessees were prejudiced in

5 either paying for inappropriate works or paying more than would be appropriate, because of the failure of the landlord to comply with the consultation requirements. In his judgment, Lord [NAME] said as follows;

44. Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an [NAME] by a landlord under section 20ZA(1) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements.

45. Thus, in a case where it was common ground that the extent, quality and cost of the works were in no way affected by the landlord’s failure to comply with the Requirements, 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 – ie as if the Requirements had been complied with.

21.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

22. The tribunal is of the view that, taking into account that there were no objecting leaseholders, it could not find prejudice to any of the leaseholders of the property by the granting of dispensation relating to the works required to repair leaking gutters set out in the [NAME].

23. The tribunal were mindful of the lack of detailed information in the [NAME] as to the cost of the works proposed, or even the specification of works. However, as stated above, this [NAME] does not concern the issue of whether or not service charges will be reasonable or payable.

24. No confirmation has been provided that the [NAME] has been displayed in a prominent place in the common parts of the building as directed.

25. We therefore make the following conditions of such dispensation

(a) that the applicant is to bear its own costs of this [NAME], which should not be passed on to leaseholders.

6 (b) that the applicant must within 48 hours of this decision display the [NAME] dated 24th March 2021, all document referred to in the directions of 25th May 2021 and this decision in a prominent place in the common parts of the building, and then confirm in writing to the Tribunal that this has been carried out. (c) That this decision be sent to all the leaseholders by email, by delivery by hand or by first class post.

.

Judge D [NAME]

6th July 2021

7 APPENDIX 1 RIGHTS OF APPEAL

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The [NAME] for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

3. If the [NAME] is not made within the 28 day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed despite not being within the time limit.

4. The [NAME] 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 [NAME] the [NAME] is seeking.

8 ‘; APPENDIX 2 RELEVANT LEGISLATION

Landlord and Tenant Act 1985

20ZA. Consultation requirements: supplementary (1) Where an [NAME] is made to the appropriate 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.

Service Charges (Consultation Requirements) (England) Regulations 2003. Part 2 - consultation requirements for qualifying works for which public notice is not required Notice of intention 1. (1) The landlord shall give notice in writing of his intention to carry out qualifying works— (a) to [NAME]; and (b) where a [COMPANY] represents some or all of the tenants, to the association. (2) The notice shall— (a) describe, in general terms, the works proposed to be carried out or specify the place and hours at which a description of the proposed works may be inspected; (b) state the landlord’s reasons for considering it necessary to carry out the proposed works; (c) invite the [NAME], in writing, of observations in relation to the proposed works; and (d) specify—

9 (i) the address to which such observations may be sent; (ii) that they must be delivered within the relevant period; and (iii) the date on which the relevant period ends. (3) The notice shall also invite [NAME] and the association (if any) to propose, within the relevant period, the name of a person from whom the landlord should try to obtain an estimate for the carrying out of the proposed works.

Inspection of description of proposed works 2. (1) Where a notice under paragraph 1 specifies a place and hours for inspection— (a) the place and hours so specified must be reasonable; and (b) a description of the proposed works must be available for inspection, free of charge, at that place and during those hours. (2) If facilities to enable copies to be taken are not made available at the times at which the description may be inspected, the landlord shall provide to any tenant, on request and free of charge, a copy of the description. Duty to have regard to observations in relation to proposed works 3. Where, within the relevant period, observations are made, in relation to the proposed works by any tenant or [COMPANY], the landlord shall have regard to those observations.

Estimates and response to observations 4. (1) Where, within the relevant period, a nomination is made by a [COMPANY] (whether or not a nomination is made by any tenant), the landlord shall try to obtain an estimate from the [NAME].

(2) Where, within the relevant period, a nomination is made by only one of the tenants (whether or not a nomination is made by a

10 [COMPANY]), the landlord shall try to obtain an estimate from the [NAME].

(3) Where, within the relevant period, a single nomination is made by more than one tenant (whether or not a nomination is made by a [COMPANY]), the landlord shall try to obtain an estimate— (a) from the person who received the most nominations; or (b) if there is no such person, but two (or more) persons received the same number of nominations, being a number in excess of the nominations received by any other person, from one of those two (or more) persons; or (c) in any other case, from any [NAME].

(4) Where, within the relevant period, more than one nomination is made by any tenant and more than one nomination is made by a [COMPANY], the landlord shall try to obtain an estimate— (a) from at least one person [NAME] by a tenant; and (b) from at least one person [NAME] by the association, other than a person from whom an estimate is sought as mentioned in paragraph (a). (5) The landlord shall, in accordance with this sub-paragraph and sub-paragraphs (6) to (9)— (a) obtain estimates for the carrying out of the proposed works; (b) supply, free of charge, a statement (“the paragraph (b) statement”) setting out— (i) as regards at least two of the estimates, the amount specified in the estimate as the estimated cost of the proposed works; and (ii) where the landlord has received observations to which (in accordance with paragraph 3) he is required to have regard, a summary of the observations and his response to them; and

11 (c) make all of the estimates available for inspection. (6) At least one of the estimates must be that of a person wholly unconnected with the landlord. (7) For the purpose of paragraph (6), it shall be assumed that there is a connection between a person and the landlord— (a) where the landlord is a company, if the person is, or is to be, a director or manager of the company or is a close relative of any such director or manager; (b) where the landlord is a company, and the person is a partner in a [NAME], if any partner in that [NAME] is, or is to be, a director or manager of the company or is a close relative of any such director or manager; (c) where both the landlord and the person are companies, if any director or manager of one company is, or is to be, a director or manager of the other company; (d) where the person is a company, if the landlord is a director or manager of the company or is a close relative of any such director or manager; or (e) where the person is a company and the landlord is a partner in a [NAME], if any partner in that [NAME] is a director or manager of the company or is a close relative of any such director or manager. (8) Where the landlord has obtained an estimate from a [NAME], that estimate must be one of those to which the paragraph (b) statement relates. (9) The paragraph (b) statement shall be supplied to, and the estimates made available for inspection by— (a) [NAME]; and (b) the secretary of the [COMPANY] (if any). (10) The landlord shall, by notice in writing to [NAME] and the association (if any)—

12 (a) specify the place and hours at which the estimates may be inspected; (b) invite the [NAME], in writing, of observations in relation to those estimates; (c) specify— (i) the address to which such observations may be sent; (ii) that they must be delivered within the relevant period; and (iii) the date on which the relevant period ends.

(11) Paragraph 2 shall apply to estimates made available for inspection under this paragraph as it applies to a description of proposed works made available for inspection under that paragraph.

Duty to have regard to observations in relation to estimates 5. Where, within the relevant period, observations are made in relation to the estimates by a [COMPANY] or, as the case may be, any tenant, the landlord shall have regard to those observations. Duty on entering into contract 6. (1) Subject to sub-paragraph (2), where the landlord enters into a contract for the carrying out of qualifying works, he shall, within 21 days of entering into the contract, by notice in writing to [NAME] and the [COMPANY] (if any)— (a) state his reasons for awarding the contract or specify the place and hours at which a statement of those reasons may be inspected; and (b) there he received observations to which (in accordance with paragraph 5) he was required to have regard, summarise the observations and set out his response to them.

13

(2) The requirements of sub-paragraph (1) do not apply where the person with whom the contract is made is a [NAME] or submitted the lowest estimate.

(3) Paragraph 2 shall apply to a statement made available for inspection under this paragraph as it applies to a description of proposed works made available for inspection under that paragraph.