Freeholder Allowed Urgent Repairs Without Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BD/LDC/2022/0001 HMCTS Code : P: Paper remote Property : [NAME], 68/70 [ADDRESS], [POSTCODE] Applicant : [redacted] : [COMPANY], Managing Agent Respondents : [redacted]

Representative : In person Type of [NAME] : For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal member :

Tribunal Judge I [NAME] [NAME] (EST MAN) FRICS

Date of decision :

12 April 2022 amended 19 April 2022

DECISION

2 Covid-19 pandemic: description of hearing This has been a remote hearing on the papers, which has been consented to by the Applicant and not objected to by the Respondents. The form of remote hearing was P: PAPER REMOTE. A face-to-face hearing was not held because it was not practicable and no one requested the same. Introduction 1. The Applicant makes an [NAME] under section 20ZA of the Landlord and Tenant Act 1985 (as amended) (“the Act”) for retrospective dispensation from the consultation requirements imposed by section 20 of the Act.

2. [NAME], 68/70 [ADDRESS], [POSTCODE] (“the property”) is a converted block of 9 flats with associated car parking and grounds. All of the 9 leaseholders own a share in the [COMPANY].

3. The managing agent, [APPELLANT] (“MBL”), arranged for a survey to be carried out of the roof area above Flat 9. This revealed various defects with the main and flat roof and soffits that resulted in water ingress into Flat 9. MBL obtained two estimates and intended to immediately proceed with the remedial works without carrying out statutory consultation with the lessees as required by section 20 of the Act.

4. On 10 December 2021, MBL wrote to all of the leaseholders informing them of the water ingress into Flat 9, the cause of the water ingress and the intention to carry out the remedial works urgently to prevent further water ingress. The leaseholders were also informed of the intention to apply to the Tribunal for retrospective dispensation for the failure to carry out statutory consultation. Apparently, all of the leaseholders supported this course of action and the remedial works were completed by 2 March 2022 at a cost of £7,597.20 including VAT.

5. By an [NAME] dated 23 December 2021, the Applicant made this [NAME] for retrospective dispensation.

6. On 17 January 2022, the Tribunal issued Directions and directed the lessees to respond to the [NAME] stating whether they objected to it in any way. By an email dated 19 January 2022, MBL confirmed that a copy of the [NAME] and the Tribunal’s Directions had been emailed to all of the lessees and hard copies exhibited in the common parts of the building. The Tribunal also directed that this [NAME] be determined on the basis of written representations only.

7. None of the Respondents have objected to the [NAME].

Relevant Law

3

8. This is set out in the Appendix annexed hereto.

Decision

9. The determination of the [NAME] took place on 12 April 2022 without an oral hearing. It was based solely on the statement of case and other documentary evidence filed by the Applicant.

10. The relevant test to the applied in an [NAME] such as this has been set out in the Supreme Court decision in [COMPANY] v [NAME] & Ors [2013] UKSC 14 where it was held that the purpose of the consultation requirements imposed by section 20 of the Act was to ensure that tenants were protected from paying for inappropriate works or paying more than was appropriate. In other words, a tenant should suffer no prejudice in this way.

11. The issue before the Tribunal was whether retrospective dispensation should be granted in relation to requirement to carry out statutory consultation with the leaseholders regarding the remedial works to prevent further water ingress. In this [NAME], the Tribunal is not concerned about the actual or estimated cost that has been incurred.

12. The Tribunal granted the [NAME] the following reasons:

(a) the Tribunal was satisfied that the water ingress into Flat 9 was sufficiently significant to require immediate remedial work and were, therefore, urgent in nature.

(b) the Tribunal was satisfied that the Respondents were informed of the water ingress in a timely manner and the need to carry out remedial repairs on an urgent basis. The Tribunal was also satisfied that if the Applicant carried out statutory consultation, it is likely that the health and safety of the occupants in Flat 9 would be significantly prejudiced and potentially any delay incurred may have resulted in increased cost in carrying out the remedial work from further deterioration caused by any continuing water ingress.

(c) the Tribunal was satisfied that the Respondents have been served with the [NAME] and the evidence in support and there has been no objection from any of them.

(d) importantly, the real prejudice to the Respondents would be in the cost of the works and they have the statutory protection of section 19 of the Act, which preserves their right to challenge the actual or estimated costs incurred and they have done so by [NAME] a parallel service charge [NAME] under section 27A of the Act.

4 13. The Tribunal, therefore, concluded that the Respondents were not be prejudiced by the Applicant’s failure to consult and the [NAME] was granted as sought.

14. It should be noted that in granting this part of the [NAME], the Tribunal makes no finding that the scope and estimated cost of the repairs are reasonable.

Name: Tribunal Judge I [NAME]: 12 April 2022 Rights of appeal 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. 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. 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]. 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. 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. 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 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) 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 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

6 accordance with, the regulations is limited to the amount so prescribed or determined.

Section 20ZA

(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.