First-tier Tribunal Grants Urgent Repairs Dispensation Without Hearing

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/45UH/LDC/2022/0017

Property

:

[ADDRESS], Worthing, west Sussex, [POSTCODE]

Applicant: [redacted]

[RESPONDENT]

:

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 April 2022 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.

DECISION

The Tribunal grants dispensation from the remaining consultation requirements of S.20 of the Landlord and Tenant Act 1985 in respect of the roof repairs completed on 19 December 2021.

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

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 made on 22 February 2022.

2. The application confirms that the property is a block of two flats within a period building.

3.

The Applicant states that a section 20 stage 1 notice was issued on 24 November 2021 following a report of ridge tiles that had come down on the roof. Essential roof repair works were needed, and scaffolding required to repair the affected areas.

4.

Following advice from the Applicants [NAME] and the roofing contractor it was considered that urgent emergency repairs were required due to it being a safety risk.

5.

The work consisted of: • Scaffolding • Erecting necessary equipment to enable works to be carried out • Removing remaining section of ridges and tiles • Removing tiles at eave to fit necessary timberwork to securely hold hip iron • Replacing all damaged, missing, and broken tiles in this area • Applying uni-bond to hips and area where hips are to be fitted to get a good adhesion • Re-cementing on new hip tiles, being bedded on a 3:1 mortar mix being neatly pointed and trowled up • Removing debris • Removing scaffolding and equipment • Leaving work area tidy

6.

The works were carried out and completed on 19 December 2021.

7. The Tribunal made directions on 2 March 2022 indicating that the Tribunal was satisfied that the matter was urgent, that it was not practicable for there to be a hearing and it was 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.

8. The Tribunal served its Directions on the Leaseholder together with a form for her to indicate to the Tribunal whether she agreed with or opposed the application. It was indicated that if she agreed with the application or failed to return the form she would be removed as a Respondent.

3 9. Other than a query from the [NAME] as to the purpose of the application no objection has been received. As such the [NAME] has been removed as a Respondent in accordance with the above paragraph.

10. 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 was unopposed.

11. 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

12. 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.

13. 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).

4 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.

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

14. The Applicant submitted a hearing bundle in accordance with the Tribunal’s Directions.

Determination

15. 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.

16. The [NAME] had been made aware of the proposed repairs by way of a Notice of Intention served on 24 November 2021 and the Tribunal accepts that these works were urgent and could not wait while the consultation procedures were conducted.

17. No objections were received and therefore no prejudice as referred to in the [NAME] case has been identified.

18. For these reasons I accept that dispensation should be granted.

19. The Tribunal therefore grants dispensation from the remaining consultation requirements of S.20 of the Landlord and Tenant Act 1985 in respect of the roof repairs completed on 19 December 2021.

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

21. The Applicant is to send a copy of this decision to each [NAME].

D [NAME] [NAME] 6 April 2022

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.