Freeholder Granted Urgent Repair Dispensation Without Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AP/LDC/2024/0662 Property

Applicant : [redacted] 23 [ADDRESS], [POSTCODE]

[COMPANY] :

[NAME], Managing Agent

Respondents : [redacted] [NAME] form Representative : N/A Type of [NAME] : For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal members :

Tribunal Judge I [NAME] [NAME] of decision :

31 March 2025

DECISION

2 Introduction 1. The Applicant seeks an order pursuant to s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) for retrospective dispensation with the consultation requirements in respect of remedial roof works at the property known as 23 [ADDRESS], [POSTCODE] (“the property”).

2. The Applicant is the freeholder of the property and the Respondents are the long [NAME].

3. The property is described as being a three-storey residential block of flats that was originally built as a mid-terrace townhouse in the late 19th century (possibly 1870’s). It was estimated that the building was converted into flats in the late 20th century (date unknown, possibly 1980’s). There is a total of three self-contained flats in the property, all accessed from the common internal stairwell.

4. It is the Applicant’s case that in or about January 2024 the Applicant’s managing agent, [NAME] (“[APPELLANT]”), carried out a site visit to the property. Apparently, this identified a number of external repairs and maintenance that were required. This included investigation of the brickwork to the rear of the property at the first floor level for the presence of damp. The leaseholder of the first floor flat had also made a report of water ingress in the kitchen where blistering and peeling paintwork adjacent to the boiler and cooker was found.

5. [NAME] instructed a roofing contractor, [NAME], to investigate the problem. In its estimate dated 11 March 2024, the contractor found that the main cause of the damp was from the flat roof above. There were multiple splits in the roof covering directly above the area of water ingress and there was a defective drip detail along the front edge that allowed water to drip behind the gutter. This was apparent from the photographs provided. The estimated cost of the remedial work was £750 plus VAT.

6. It is the Applicant’s case that the remedial roof works were urgent because the water ingress was affecting the boiler and electrics in the first floor flat. However, no specific detail has been provided about this.

7. On 19 March 2024, the roofing contractor was instructed to carry out the remedial work, which appears to have been done on or about 10 April 2024 for the sum of £900.

8. On 11 November 2024, [NAME] informed that [NAME] of the need to carry out the remedial roof work and the Applicant’s intention to make this [NAME] for retrospective dispensation in relation to that matter.

9. The [NAME] to the Tribunal is dated 18 November 2024. On 4 February 2025, the Tribunal issued Directions requiring the Applicant to serve the

3 Respondents with a copy of the [NAME]. The Respondents were directed to respond to the [NAME] stating whether they objected to it in any way.

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

Relevant Law

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

Decision 12. As directed, the Tribunal’s determination “on the papers” took place on 31 March 2025 and was based solely on the documentary evidence filed by the Applicant. As stated earlier, no objections had been received from any of the Respondents nor had they filed any evidence.

13. 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.

14. The issue before the Tribunal was whether dispensation should be granted in relation to the requirement to carry out statutory consultation with the [NAME] regarding the overall roof works. As stated in the directions order, the Tribunal is not concerned about the actual cost that has been incurred.

15. The Tribunal granted the [NAME] for the following main reasons:

(a) The Tribunal was satisfied that the Respondents have been kept informed of the need, scope and estimated cost of the proposed works.

(b) 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. The Tribunal attached significant weight to this.

(c) The Tribunal was satisfied that any delay incurred by the Applicant having to carry out statutory consultation may have resulted in increased repair costs being incurred, especially given the time of year and the possibility of greater rainfall and, therefore, further water ingress.

(d) There is no evidence before the Tribunal that further water ingress occurred after the remedial work was caried out and the repair appears to have been effective in preventing further water ingress to the first floor flat.

4 (e) 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 costs incurred by [NAME] a separate service charge [NAME] under section 27A of the Act.

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

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

Name: Tribunal Judge I [NAME]: 31 March 2025 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.