Freeholder Granted Permission for Urgent Roof Repairs Without Leaseholder Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AG/LDC/2019/0056 Property : [ADDRESS], [POSTCODE] Applicant : [redacted] : [NAME] Respondents : [redacted] : N/A Type of application : For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal member :

Tribunal Judge I [NAME] and venue of determination : 25 [ADDRESS] [POSTCODE] Date of decision :

25 November 2019

DECISION

2 Introduction 1. The Applicant makes an application in this matter under section 20ZA of the Landlord and Tenant Act 1985 (as amended) (“the Act”) for dispensation from the consultation requirements imposed by section 20 of the Act.

2. [ADDRESS], [POSTCODE] (“the property”) is described as eight purpose built linked blocks of flats comprised of 47 flats. By clause 4.4 of the residential leases, the [NAME] are required to pay a service charge contribution in respect of the costs set out in the Fifth Schedule, which includes the cost incurred by the Applicant in repairing and maintaining the roof and roof structures of the building.

3. Roof replacement works were planned to commence in the late Spring of 2020. As a result of continued leaks to 3 flats, there was an immediate need to carry out a section of the proposed works. A temporary overlay has been applied to the roof over the affected flats and it was hoped that this would provide sufficient protection until the proposed works were commenced next year. However, investigation has revealed that the surface asphalt layer and insulation are waterlogged thereby rendering any temporary surface application ineffective. Therefore, the Applicant has decided to bring forward elements of the roof replacement works.

4. The Applicant then obtained two estimates for the proposed roof replacement and has recommended that [COMPANY] be instructed to carry out the works at an estimated cost of £276,313. The estimate is dated 4 September 2019 and sets out the proposed works (“the Mitie estimate”).

5. On 24 September 2019, the Applicant made this application seeking dispensation from the proposed works because of the water ingress to the 3 affected flats.

6. On 7 October 2019, the Applicant served a Notice of Intention pursuant to section 20 of the Act in relation to the proposed roof works and the reason why the works are considered to be necessary.

7. On 10 October 2019, the Tribunal issued Directions and directed the [NAME] to respond to the application stating whether they objected to it in any way. A copy of the application was served personally on the [NAME] by ABC on 18 April 2019. The Tribunal also directed that this application be determined on the basis of written representations only.

8. No Respondent has filed any objection to the application.

Relevant Law

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

3 Decision

10. The determination of the application took place on 25 November 2019 without an oral hearing. It was based solely on the statement of case and other documentary evidence filed by the Applicant. No evidence was filed by any of the Respondents.

11. The relevant test to the applied in an application 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.

12. The issue before the Tribunal was whether dispensation should be granted in relation to requirement to carry out statutory consultation with the leaseholders regarding the proposed roof works. It should be noted that the Tribunal is not concerned about the actual cost that has or will be incurred, as that is not within the scope of this application.

13. The Tribunal granted the application the following reasons:

(a) the fact that each of the leaseholders has been kept informed of the defects to the roof and the requirement to carry out the proposed works.

(b) the fact that each of the leaseholders had been served with a copy of the application and documents in support.

(c) no leaseholder has objected to the application.

(d) the Tribunal was satisfied that, even though the scope of the proposed works appears to be wider than the limited repair works needed to prevent water ingress to the 3 affected flats, there would almost inevitably be a cost saving to the Respondents by having additional elements of the future proposed works carried out at the same time. For example, this would include the cost of not having to erect scaffolding on separate occasions.

(e) importantly, any 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 costs incurred.

14. The Tribunal, therefore, concluded that the Respondents would not be prejudiced by the failure to consult by the Applicant and the application was granted as sought. It should be noted that the dispensation granted by this decision is limited to the scope of works set out in the Mitie estimate only.

4

15. It should also be noted that in granting this part of the application, the Tribunal makes no finding that the scope and estimated cost of the repairs are reasonable. It is open to any of the Respondents to later challenge those matters by making an application under section 27A of the Act in the event that this becomes necessary.

Name: Tribunal Judge I [NAME]: 25 November 2019

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 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.

(2) In section 20 and this section—

"qualifying works" means works on a building or any other premises.