First-tier Tribunal Grants Urgent Repairs Dispensation Without Conditions

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BE/LDC/2023/0263 P: PAPERREMOTE Property : [NAME], 3-13 [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] [COUNSEL] [NAME] – [COMPANY] Respondents : [redacted] schedule to the [NAME] : Unrepresented Type of [NAME] : Section 20ZA Landlord and Tenant Act 1985 Dispensation with consultation requirements Tribunal member(s) : Judge J P Donegan Date of Paper Determination : 13 February 2024 Date of Decision : 13 February 2024

DECISION

This has been a remote determination 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 all issues could be determined on paper. The documents that I was referred to are in the applicant’s bundle of 29 pages, the contents of which I have noted.

2 Decision of the Tribunal

(a) The Tribunal grants dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘the 1985 Act’) for repairs and overcoating of the roof terrace above 20 [NAME], 3-13 [ADDRESS] [POSTCODE]. (b) No terms are imposed on the grant of dispensation. (c) The applicant shall send a copy of this decision to each of the respondents, either by email, hand delivery or first-class post. It shall also display a copy in a prominent place in the common parts at [NAME]. It must send an email to the Tribunal by 27 February 2024, confirming the date(s) when this was done. The [NAME]

1. The applicant seeks dispensation from the consultation requirements imposed by section 20 of the 1985 Act.

2. The [NAME] is dated 23 October 2023 and directions were issued on 03 November 2023. The case was allocated to the paper track, to be determined upon the basis of written representations. None of the parties has objected to this allocation or requested an oral hearing. The paper determination took place on 13 February 2024 3. The relevant legal provisions are set out in the appendix to this decision. The background 4. The applicant is the freeholder of [NAME], which is a listed building comprising three blocks of flats. There appear to be a total of 33 flats. The respondents are the leaseholders of these flats. [NAME] is managed by [COMPANY] (‘[NAME]’).

5. The [NAME] concerns repairs to the roof terrace adjacent to Flat 26 and above Flat 20, [NAME]. Flat 20 has suffered severe water ingress from this terrace. [NAME] served a section 20 notice of intention on the respondents dated 23 October 2023, describing the proposed works as “Repairs and overcoating of the terraced flat roof area”. They then served a statement of estimates dated 03 January 2024. The lowest tender was from [COMPANY] (£31,354.13 including professional fees and VAT). The tenders were based on a specification from a building surveyor.

3 6. The statement of estimates invited observations from the respondents by 05 February 2024. Given the extent of the water ingress, the applicant commenced the repairs before this date.

7. The applicant seeks dispensation from the statutory consultation requirements for the repairs to the roof terrace. The only issue for the Tribunal is whether it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether any service charge costs will be reasonable or payable. The grounds of the [NAME]

8. The grounds are contained in the Tribunal [NAME] and a short, undated statement from [NAME] [APPELLANT] [NAME] of [NAME]. In brief, the applicant contends the works were urgent given the extent of the water ingress to Flat 20, [NAME] it uninhabitable. Further, there was a risk of damage to other parts of [NAME].

9. Paragraph 2 of the directions gave the respondents an opportunity to object to the dispensation [NAME] by completing and returning reply forms and serving statements, setting out their grounds of opposition. No objections have been received by the applicant or the Tribunal. The Tribunal’s decision 10. The Tribunal grants dispensation for the repairs to the roof terrace above Flat 20. No terms are imposed on the grant of dispensation. Reasons for the Tribunal’s decision 11. The Tribunal accepts the works were urgent, given the extensive water ingress to Flat 20 and the risk of damage to other parts of [NAME]. The applicant has largely complied with the section 20 consultation requirements and acted reasonably in commencing the repairs before 05 February 2024.

12. None of the respondents have contested this [NAME], identified any prejudice that might arise from the grant of dispensation or proposed any terms as a condition of granting dispensation.

13. Having regard to the particular facts of this case and the guidance in [COMPANY] v Benson [2013] UKSC 14, it is reasonable to dispense with the full section 20 consultation requirements.

4 14. This decision does not address the cost of the roof terrace repairs or whether the respondents are liable to contribute to this cost via their service charges. Nothing in this decision prevents the respondents from seeking a determination of ‘payability’, pursuant to section 27A of the 1985 Act. Name: Tribunal Judge Donegan Date: 13 February 2024

Rights of appeal

1. 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.

2. 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.

3. 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].

4. 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.

5. 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.

6. If the Tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).

5 Appendix of relevant legislation

Landlord and Tenant Act 1985 (as amended) Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are [COMPANY] in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal . (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is [COMPANY] to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in

6 accordance with, the regulations is [COMPANY] to the amount so prescribed or determined.] Section 20ZA (1) Where an [NAME] is made to the appropriate tribunal for a determination to dispense with all of 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. (2) In section 20 and this section –

“qualifying works” means works on a building or any other premises, and

“qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months.

Section 27A (1) An [NAME] may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An [NAME] may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No [NAME] under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or

7 (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.