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/2020/0077

Property

:

[ADDRESS] [POSTCODE]

Applicant: [redacted]

[RESPONDENT]

:

[NAME], Company Secretary

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(s)

:

[NAME] of Decision

:

2 November 2020 on the papers

DECISION

Dispensation is granted from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works of repair to defective rendering and water damage to the two top balcony canopies.

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

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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.

a. The Applicant explains that “This was a contract for the external redecoration of [ADDRESS]. The contract date was the 25th June 2020. The works are still in progress but have been delayed following the discovery of defective rendering and water damage to the two top balcony canopies.”

2. Dispensation is sought on the grounds that “the Consultation Procedure would take at least two months and would take us into December at least, with the increasing risk that the job will be further hampered and delayed by the onset of adverse weather conditions…….”

3. The Tribunal made Directions on 14 October 2020 requiring the Applicant to send a copy of the application and the Tribunal’s Directions to the Lessees. Also sent was a form for completion by the lessees indicating whether they agreed to or opposed the application. Notice was given that lessees who agreed or failed to respond would be removed as respondents.

4. One lessee responded agreeing to the application although reserving his right to challenge the eventual cost. No other responses were received and the Lessees are therefore removed as respondents.

5. Having considered the application the Tribunal is satisfied that the matter is urgent, it is not practicable for there to be a hearing and it is 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.

6. The application is to be determined on the papers.

7. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether any service charge costs will be reasonable or payable.

The Law 8. The relevant section of the Act reads as follows:

20ZA Consultation requirements:

3 (1) 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 (1) 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 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.

Submissions

The Applicant’s case

10. The application shall stand as the Applicant’s case.

The Respondent’s case

4 11. There have been no objections to the application.

Determination 12. 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 the requirements.

13. The case of [NAME] v [NAME] referred to above provides guidance to the Tribunal when considering the issues raised by the parties.

14. No objections have been received and no evidence of prejudice as referred to in the [NAME] case has been identified.

15. For these reasons dispensation is granted from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of works of repair to defective rendering and water damage to the two top balcony canopies.”

16. In granting dispensation in respect of the Application the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.

D [NAME] [NAME] 2 November 2020

1. A person wishing to appeal this decision to the Upper Tribunal ([NAME]) must seek permission to do so by making written application to [EMAIL]. 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.

2. 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.

3. 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 appeal is seeking.

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