First-tier Tribunal Rejects Tenant's Service Charge Claim

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

:

CHI/45UC/LSC/2024/0002

Property

:

31a [ADDRESS], [POSTCODE]

Applicant: [redacted]

[EMAIL]

Representative

:

Respondent: [redacted]

[EMAIL]

Representative

:

Type of Application

:

Determination of liability to pay and reasonableness of service charges

Section 27A Landlord and Tenant Act 1985

Tribunal Member

:

Deputy Regional Judge D Whitney

Date of Decision

:

18 September 2024

Decision

Background

1. The Applicant has made an application for determination of liability to pay and reasonableness of service charges for the year 2023. The application was received on 3 January 2024.

2. The Applicant further seeks orders pursuant to Section 20C of the Landlord and Tenant Act 1985 and paragraph 5A of Schedule 11 of the Commonhold and Leasehold Reform Act 2002.

3. The Applicant seeks a determination in relation to the repair and replacement of a water supply pipe. It is not clear if any demands have been issued for the charges in question.

4. On 21st August 2024 a case management hearing took place.

5. The Respondent asserted that the debt requested was not a service charge but was being claimed as a debt relating to a breach of covenant. The Tribunal considered that on this basis it would not be the forum to determine this matter and the case could be struck out. The Tribunal under this application only has jurisdiction to determine a service charge. It was agreed that the latter issue (i.e. whether the claim demanded was a service charge) should be dealt with by the Tribunal as a preliminary issue.

6. Directions were issued for the parties to make submissions on this point by 6th September 2024.

7. The Applicant submitted a pdf bundle of 75 pages on 5th September 2024. In particular this included a statement from the Applicant and Mr [APPELLANT] who accompanied her at the earlier CMH.

8. On 6th September 2024 a single page submission attaching a copy of the lease was provided by the Respondent.

Decision

9. The dispute concerns the recovery of certain monies said to be incurred by the [NAME] as the freeholder for works to water pipes at the Property. I make clear that in determining this matter I make no findings as to these costs or how and when the same were incurred. In this decision I am simply determining whether or not such costs are a service charge.

10. The Respondent asserts they are not a service charge. The Respondent contends they undertook works to the Property as a result of the Applicants failure to undertake works and they are entitled to recover such costs from the Applicant. The assertion is that such costs are recoverable from the Applicant due to her breach of covenant and so are effectively damages.

11. The Applicant asserts that in respect of an LPE1 provided to her she was told the costs claimed are service charges. The Applicant submits this Tribunal has jurisdiction to determine the sums payable.

12. Both parties refer to clauses within the lease. The clauses to which I am referred are all part of Clause 3 being the Applicants covenants with the Respondent. The relevant clauses are:

“(6) From time to time and at all times during the said term well and substantially to repair uphold support cleanse maintain drain amend and keep the premises hereby demised and— w —partteetar—fche-rafters— or- -other—the-—support- -for-- -the--doer— rtf- -the—upper — meisoneite-'and in particular to keep the floors and roof in good weatherproofcondition and free from all leakage of rain water or other elements or things which may in any way damage or affect the lower maisonette and all new buildings which may at any time during the said term be erected on and all additions made to the demised premises and the fixtures therein and all party and other walls and fences hedges (if any) sewers drains pathways passage-ways easements and appurtenances thereof with all necessary reparations cleansings and amendments whatsoever.

(7) At all times during the said term to pay and contribute a rateable or

due proportion of the expenses of making repairing maintaining painting support-ing rebuilding and cleansing all roofs ways passageways pathways sewers drain pipes watercourses water pipes cisterns gutters party walls party structures and gates fences hedges (if any) easements and appurtenances belonging to or used or capable of being used by [NAME] in common with [NAME] or the tenants or occupiers of the premises near to or adjoining the demised premises or of which the demised premises form a part such proportion in the case of difference to be settled by the surveyor for the time being of [NAME] whose decision shall be binding And to keep [NAME] indemnified against all costs and expenses aforesaid.

(10) If [NAME] shall make default in any of the covenants hereinbefore

contained for or relating to the repair of the demised premises it shall be lawful for [NAME] (but without prejudice to the right of re-entry under the clause hereinafter contained) to enter upon the demised premises and repair the same at the expense of [NAME] in accordance with the covenants and provisions of these presents and the expenses of such repairs shall be repaid by [NAME] to [NAME] on demand.”

13. The Respondent contends that it undertook works to repair the water pipes and it is entitled to recover such costs relying upon the indemnity within Clause 3(7).

14. I have read carefully all of the submissions made. I find that the sums claimed by the Respondent are not service charges. The Respondent does not seek to recover them as such. In fact they specifically state they are not looking to recover these sums as service charges. That is a matter for them. I am not satisfied that the lease clause I have been referred to would allow the Respondent to recover the costs as service charges. As a result I find that none of the sums claimed are service charges. As a result the Applicant is not liable to pay anything by way of service charges.

15. I decline to make any findings as to whether or not the sums are recoverable by the Respondent from the Applicant pursuant to the indemnity provisions within Clause 3(7). I am satisfied that it’s a matter outside my jurisdiction and I should leave any determination to the appropriate forum for such disputes.

16. The claim is dismissed on the grounds that this Tribunal lacks jurisdiction as the sums claimed from the Applicant by the Respondent are not service charges.

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]

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.