Landlord Granted Dispensation for Urgent Leaking Flat Investigation

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BK/LDC/2022/0244 Property : 21/23 [ADDRESS] [POSTCODE] Applicant : [redacted] : [RESPONDENT] Respondent : [redacted] includes 15/[ADDRESS], London [POSTCODE] Representative : None Type of [NAME] : [NAME] for dispensation under s20ZA of the Landlord and Tenant Act 1985 Tribunal member(s) : Judge Dutton Mr D Jagger MRICS Date and venue of hearing : Paper determination Date of decision : 14 February 2023

DECISION

Decisions of the tribunal The tribunal determines that by virtue of s20ZA of the Landlord and Tenant Act 1985 (the Act) dispensation should be granted from the remaining consultation provisions in respect of the investigation and remedial work to flat 1, as required under s20 of the Act and the Service Charges (Consultation Requirements) (England) Regulations 2003 (the Regulations) for the reasons set out below. We consider some conditions should apply. Background 1. This is an [NAME] under section 20ZA of the Landlord and Tenant Act 1985 (the Act) by the landlord, [NAME] (No.2) [RESPONDENT] in respect of the property 21/23 [ADDRESS] [POSTCODE] (the Property) for dispensation from the requirements under s20 of the Act and the Regulations. The [NAME] is dated 6 December 2022.

2. We have been supplied with a bundle running to some 88 pages, which includes the [NAME], a statement of reasons prepared by [NAME], the managing director of [APPELLANT] ([APPELLANT]) the agents for the Applicant, a copy of the lease for flat 1, letters to the various [NAME] giving Notice of Intention to carry out the works as required by s20 of the Act and a quote from [COMPANY]. We have noted the contents and taken them into account when reaching our decision.

3. The [NAME] indicates that the works for which dispensation is sought relates to the investigation into a leak affecting flat 1, appearing to emanate from the rear roof area between balconies, and remedial works to be carried out as a result of such investigations, which according to the quote would be £1,900 plus VAT for the erection of the scaffolding and presumably investigating the leak. The quote also includes costs of works to repair the balcony at flat 4. However, it is not stated that the damage to flat 1 is linked to the problems with the balcony and dispensation is sought for investigation and any remedial repair for flat 1 only.

4. There are it seems 14 flats in the Property, which includes the 6 flats in [ADDRESS] who contribute to the service charge regime. There are also two commercial units at ground floor level. On 2 December 2022 a Notice of Intention was sent to all the [NAME] outlining the works needed. On 7 February 2023 the quote from [COMPANY] was obtained, showing a cost for works to flat 1 of £1,900 to erect scaffolding and investigate and to repair the balcony to flat 4 of £1,800, both were subject to the addition of VAT. It should be noted that the costs of the works are not a matter for this [NAME], which relates only to the dispensation element.

5. Directions were issued on 20 December 2022 indicating that, in the absence of any disagreement the [NAME] would proceed as a paper determination. We have seen an email from [NAME] of [APPELLANT] confirming that the documents required to be sent under the directions had been issued to the [NAME] and displayed in the communal areas on 10 January 2023. Subsequently we were informed that no leaseholder had raised an objection to this [NAME].

6. The statement of reasons is somewhat confusing as Ms [NAME] appears to indicate she represents the respondents (the [NAME]) but we assume that to be a typographical error and that she has submitted the statement on behalf of the Applicant. This sets out the issues relating to flat 1, especially the damage being caused to that property and the need for urgency but does not really expand on what is intended, presumably that being determined once the investigation has been completed.

Findings 7. We have considered this matter solely on the papers before us. This [NAME] relates only to the dispensation from the consultation requirements set out at s20 of the Act and the Regulations for investigative works including the erection of scaffolding to the value of £1,900 plus VAT in respect of flat 1 at the Property and the subsequent remedial work, the extent of which will be established once the investigation is complete. It does not relate to the reasonableness or the liability to pay for the costs associated with the works.

8. It is clear from the papers produced that flat 1 is being affected by water ingress and that this needs to be stopped. These are matters that require urgent attention and we are satisfied that it is reasonable to grant dispensation from the consultation requirements. We have borne in mind the Supreme Court decision in [COMPANY] v Benson and others [2013] UKSC 14. There is no evidence of any prejudice caused to the [NAME] and indeed none have raised an objection to the [NAME]. Dispensation is therefore granted from the remaining elements of the consultation process as provided for in the Regulations. However, we consider that there should be some conditions attached. They are that as soon as the investigation has been completed, [APPELLANT] will notify the [NAME] in writing of the results of the investigation and provide the [NAME] with an estimate of the costs of undertaking the works found to be necessary. Name: Judge Dutton Date: 14 February 2023

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).