Landlord Granted Dispensation for Urgent Fire Alarm Replacement

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

:

CHI/23UB/LDC/2024/0072

Property

: 64-66 [APPELLANT]

[POSTCODE]

Applicant: [redacted]

:

[COMPANY]

[EMAIL] replaced by

[NAME]

Respondent: [redacted]

[NAME] 2

Mr & Mrs [COUNSEL] 3

[COUNSEL] -Flat 4

Representative

:

None

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

:

[NAME] of Decision

:

6th January 2025

DECISION

Summary of the Decision

1. The Applicant is granted retrospective 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 in relation to replacement of fire alarm system. The Tribunal has made no determination on whether the costs of the works are reasonable or payable.

Background

2. On 16th April 2024 the Applicant sought 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.

3. The property is described as a block of 4 flats within a converted building with entrance corridors.

4. The Tribunal gave Directions on 25th September 2024 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.

5. The Directions stated that the Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the Directions. No party has objected to the application being determined on the papers.

6. On that same date, 25th September 2024, the Tribunal received an email from [COMPANY] which stated that they were no longer managing the development, and that [NAME] were now appointed as managing agent. By an email dated 9th December 2024 this was confirmed by [APPELLANT], the Director of the Applicant Company.

7. The Applicant explains that due to the safety of residents they had no other choice than to replace the fire alarm system and they attached an invoice from [COMPANY] in the sum of £3,325.44.

8. On 23rd October 2024 the Tribunal wrote to [NAME] stating that the Applicant must by 4pm on 24th October 2024 inform the Tribunal whether or not it has received any objections to the application. Failure to provide this would result in the file being sent to a judge with a view to striking out the application.

9. On 16th October 2024 the Tribunal sent a chaser email to the Applicant’s representative. On 31st October 2024 they responded stating that they had experienced problems with emails being hacked and asking for more information.

10. On 1st November 2024 the Tribunal responded by sending the Application and Directions together with a case management application form and requesting that by 6th November 2024 confirmation be provided that the case was still proceeding, and an authority be provided that the representatives had authority to act. Further, it stated that failure to provide the information would result in the application being struck out.

11. At 18.58 on 6th November 2024 (therefore past the deadline set by the Tribunal) the Applicant’s representative responded apologising for the delay. It informed the Tribunal that it was seeking advice but asked to proceed with the application.

12. No further correspondence was received from the Applicant; therefore, the Tribunal issued a notice on 4th December 2024 that it was minded to strike out the application unless by 4pm on 6th December 2024 the required documentation was received.

13. The Tribunal received various emails on 6th December 2024 from the Applicant’s representative requesting a delay until Monday 9th December 2024.

14. A case management application has also been submitted although the completed form does not make clear the case management order that is required. The email dated 9th December 2024 from [NAME] was then received, see paragraph 6 above.

15. Despite the many procedural errors the Tribunal notes that the Respondents have all been individually served the Application and Directions, and none of whom have sent any objections to the Tribunal

16. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the works, and whether they are recoverable from the leaseholders as service charges or the possible application or effect of the Building Safety Act 2022. The leaseholders have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges.

The Law

17. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where [NAME] undertakes qualifying works with a cost of more than £250 per lease / to enter into a Long Term Qualifying Agreement being an agreement of 12 months or more with a cost of more than £100 per annum per lease the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

18. The relevant section of the Act reads as follows:

S.20 ZA Consultation requirements:

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.

19. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

20. The leading judgment of Lord [NAME] explained that a Tribunal should focus on the question of whether [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were a means to an end, not an end in themselves.

21. The factual burden of demonstrating prejudice falls on [NAME]. [NAME] must identify what would have been said if able to engage in a consultation process. If [NAME] advances a credible case for having been prejudiced, [NAME] must rebut it. The Tribunal should be sympathetic to [NAME](s).

22. Where the extent, quality and cost of the works were in no way affected by [NAME]’s failure to comply, Lord [NAME] said as follows:

I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.

23. The main, indeed normally, the sole question, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.

24. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.

25. If dispensation is granted, that may be on terms.

26. There have been subsequent Decisions of the higher Courts and Tribunals of assistance in the application of the Decision in Daejan but none are relied upon or therefore require specific mention in this Decision.

Consideration

27. The Directions attached a reply form for the Respondents to complete to confirm whether they agreed with the application or not and if opposed, to provide a statement setting out why they oppose it.

28. Having considered the application and prior to undertaking this determination, I am satisfied that a determination on the papers remains appropriate, given that the application remains unchallenged.

29. The reason why dispensation from consultation requirements is said to be required is due to the urgency of replacing a defective or defunct fire alarm system. Given the nature of the works and the fact that it related to the safety and welfare of the building and its occupants, I am satisfied that the qualifying works were of an urgent nature.

30. There has been no objection to the dispensation of the consultation requirements from any of the Lessees.

31. None of the Lessees have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the Lessees, except for the potential delay and potential problems.

32. The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

33. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the building as described in this Decision.

34. This Decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying works for replacing the fire alarm system, as outlined at paragraph 7. The Tribunal has made no determination on whether the costs are payable or reasonable. If a [NAME] wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

35. In reaching my decision I have taken account of the fact that no party has objected to the application. The leaseholders have had opportunity to raise any objection and they have not done so. I do however Direct that the dispensation is conditional upon the Applicant or their agent sending a copy of this decision to all the leaseholders so that they are aware of the same.

RIGHTS OF APPEAL

36. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case by email at [EMAIL]

29. 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.

30. 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.

31. 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 application is seeking.