First-tier Tribunal Grants Urgent Repairs Dispensation Without Full Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference :

LON/00AG/LDC/2020/0145

HMCTS Code

:

P:PAPERREMOTE

Property :

[ADDRESS] [POSTCODE]

Applicant : [redacted] : [APPELLANT] Respondents : [redacted] schedule to the [NAME] of [NAME] :

[NAME] under section 20ZA to dispense with consultation requirements for the erection of scaffolding and works carried out to the roof Tribunal Member : [NAME] and venue of Paper Determination : 9 December 2020, decided on the papers. Date of Decision :

DECISION

Covid-19 pandemic: description of hearing: This has been a remote hearing on the papers which has been not 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.

Decision of the tribunal I. The tribunal grants dispensation in respect of the erection of scaffolding and works carried out to the roof to the premises known as [ADDRESS] [POSTCODE]. II. The Tribunal orders that details of the cost together with an estimate of the service charges payable by the [NAME] shall be provided to the [NAME] within 28 days, if not already done so.

The [NAME] 1. [NAME] (‘The Applicant’) by an [NAME] dated 10 September 2020 sought dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘The Act’) from all of the consultation requirements imposed on the landlord by section 20 of the 1985 Act1.

2. [ADDRESS] [POSTCODE]

(‘The Property’), which is the subject of the [NAME], is a semi- detached town house converted into 4 flats on 4 storeys (lower ground to 2nd floor).

The Background 3. Directions were given in writing on 8 October 2020, for the progress of this case. 4. The tribunal directed that the Landlord be substituted as the Applicant in place of [APPELLANT], who would be named as the Applicant’s representative. The tribunal has accordingly named [NAME] as the applicant.

1 See Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987)

5. By 23 October 2020 [RESPONDENT] was to provide the tribunal with the Landlord’s exact name, its email address and evidence that it was the Respondents’ landlord and that [RESPONDENT] was its representative.

6. By the same date it was to notify each leaseholder of the [NAME] and the directions and display a copy in a prominent place in the building. 7. [NAME] were to make any objection to the [NAME] by 6 November 2020.

8. By 23 November 2020, the Applicant was to provide a digital, indexed and paginated PDF bundle for the Tribunal and any leaseholder who had opposed the [NAME] or requested a copy of the bundle.

9. The Directions also provided that the [NAME] could be determined on the basis of written representations. However, all parties were given the option of [NAME] a request for a hearing by 6 November 2020. Neither the Applicant nor the Respondents have requested a hearing, and the Tribunal are satisfied that there is sufficient information before it to enable it to decide this matter without injustice to any party without a hearing.

10. The Directions further stated that the Tribunal would not inspect the Property but, where necessary, will rely upon any plan and photographs provided by the parties.

The Applicant’s case 11. The Applicant is the freeholder of the subject property, a house converted into 4 flats.

12. The Respondents are the [NAME] of those flats.

13. On 18 June 2020 Flat 4 reported water ingress to their flat from the roof above.

14. A roof contractor who attended the property confirmed a possible blocked gutter which could only be accessed by scaffolding. A quote was obtained and forwarded to the lessees.

15. Scaffolding was erected on 24 August and the works proceeded immediately. The work was considered to be urgent to prevent further water ingress to Flat 4.

16. At the time of the works no consultation exercise had been instigated, although the [NAME] were informed of the works required and the cost. The [NAME] were informed that a section 20ZA [NAME] would be made.

17. The Tribunal notes that there has been no objection from the Respondents. The Tribunal’s decision 18. The Tribunal has decided that it is reasonable to dispense with the statutory consultation requirements of section 20 of the Act in relation to the replacement steps at The Property in 2020. Reasons for the decision 19. The Tribunal, in reaching its decision, had to consider whether it was reasonable to grant dispensation. The relevant statutory provisions are found in subsection 20ZA (1) of the 1985 Act under heading “Consultation Requirements: Supplementary”. That subsection reads as follows: “Where as [NAME] 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 it is reasonable to dispense with the requirements”.

20. The Tribunal find that the Applicant was unable to consult fully under section 20 due to the urgent nature of the work and the time need to carry out a full, section 20 consultation exercise.

21.

Accordingly, the Tribunal is satisfied the consultation procedure ought to be dispensed with. This decision of the Tribunal is limited to the need to consult under section 20 of the Landlord and Tenant Act 1985 for this work. Given this, the parties attention is drawn to the fact that the Tribunal have not made a determination on the reasonableness and payability of the service charges under Section 27 A of the 1985 Act for this work.

22. The Respondents will, of course, enjoy the protection of section 27A of the 1985 Act so that if they consider the costs of the work are not reasonable (on the grounds set out above or any other ground) they may make an [NAME] to the tribunal for a determination of their liability to pay the resultant service charge.

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.

[NAME] of relevant legislation

Landlord and Tenant Act 1985 Section 27A (1) An [NAME] may be made to a leasehold valuation 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 a leasehold valuation 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 (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. Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited 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) a leasehold valuation 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 limited 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 accordance with, the regulations is limited to the amount so prescribed or determined.]

1. [POSTCODE] Consultation requirements: supplementary (1) Where an [NAME] 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. (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. (3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a) if it is an agreement of a description prescribed by the regulations, or (b) in any circumstances so prescribed. (4) In section 20 and this section "the consultation requirements" means requirements prescribed by regulations made by the Secretary of State. (5) Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the [COMPANY] representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the [COMPANY] to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the [COMPANY] in relation to proposed works or agreements and estimates, and (e) to give reasons in prescribed circumstances for carrying out works or entering into agreements. (6) Regulations under section 20 or this section— (a) may make provision generally or only in relation to specific cases, and (b) may make different provision for different purposes. (7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. [...]

2. The relevant Regulations referred to in section 20 are those set out in Part 2 of Schedule 4 of the Service Charge (Consultation etc) (England) Regulations 2003.