Landlord Granted Dispensation for Urgent Repairs Without Consulting Leaseholders

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME])

Case Reference

:

CHI/21UC/LDC/2024/0109/BS

[NAME]

:

9 [ADDRESS], [POSTCODE]

Applicant: [redacted]

:

[APPELLANT]

Respondent: [redacted]

:

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

:

Judge N Jutton

Date of Determination

:

3 December 2024

DECISION

2 Summary of the Decision

1. The Applicant is granted dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements in respect of works undertaken at the [NAME] to repair a water leak into the communal hallway from the roof above to include the cost of scaffolding asserted with those works.

The application and the history of the case

2. The Applicant applies for 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. The Applicant says that the [NAME] is a converted detached freehold house built circa 1870 comprising eight leasehold flats situated across three stories.

3. The Applicant says that there was a water leak into the communal hallway from the roof above. In order for contractors to investigate scaffolding was required. The Applicant arranged for a surveyor to attend and to investigate. The surveyor recommended that a quote be obtained for the works required to stop the ingress of water. That the cost of the works including the cost scaffolding triggered the need to consult with the Respondents under section 20 of the Landlord and Tenant Act 1985. However, because of the damage to the communal hall and the continued ingress of water when it rained the Applicant notified the Respondents that it intended to proceed with the works of repair and to make an application to this Tribunal the dispensation from the said consultation requirements.

4. The works are described as: erection of scaffolding, strip all material to roof gully and clear from site, reform new gully with 18 mm OSB board to include new step and to correct fall, supply and fit new code 5 lead in gully and refit all tiles as necessary (the Works).

5. The Tribunal gave Directions on 22 October 2024. The Directions provided that the Tribunal was satisfied that the application may be determined on the papers without an oral hearing and that it would proceed accordingly unless a party objected in writing within 14 days of receipt of the Directions. No objections have been received accordingly the Tribunal proceeds to determine the application on the papers.

6. The Tribunal sent a copy of the Directions, the application and supporting documents to each Respondent. The Directions made provision for the Respondents to complete a reply form and return that to the Tribunal and to the Applicant stating whether or not the application was opposed, and if so why. No objections have been received from the Respondents.

7. The Directions made it clear that this application does not concern the issue of whether or not service charge costs arising from the Works will

3 be payable and if so reasonable in amount or of the possible application or effect of the Building Safety Act 2022. That the Respondent [RESPONDENT] 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 of the proposed works, and the contribution payable through the service charges both in general and in particular because of the provisions of and the protections provided by the Building Safety Act 2022.

The Law

8. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where the lessor intends to undertake major works with a cost of more than £250 per lease in any one service charge year 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.

9. Section 20ZA provides that on an application to dispense with any or all of the consultation requirements, the Tribunal may make a determination granting such dispensation “if satisfied that it is reasonable to dispense with the requirements”.

10. 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.

11. 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 the lessor 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”.

12. 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, the lessor must rebut it. The Tribunal should be sympathetic to [NAME](s).

13. Where the extent, quality and cost of the works were in no way affected by the lessor’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.”

4 14. 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.

15. 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.

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

17. The effect of [NAME] has been considered by the Upper Tribunal in [NAME] v [NAME] and Others [2020] UKUT 177 (LC), although that decision primarily dealt with the imposition of conditions when granting dispensation and that the ability of lessees to challenge the reasonableness of service charges claimed was not an answer to an argument of prejudice arising from a failure to consult.

Decision

18. The Applicant explains that there was a water leak to the communal hallway at the [NAME] from the roof above. That the ingress of water continued when it rained. I am satisfied from the application that it was right and proper for the Applicant to investigate and to address the leak as a matter of urgency to prevent the further ingress of water and potential damage to the [NAME]. The Applicant further explains that in order to allow contractors to investigate the leak it was necessary to erect scaffolding. On the advice of a surveyor a quote was obtained for the cost the repair work. That the total cost of the Works to include the cost of scaffolding triggered the need to undertake the consultation process required by section 20 of the Landlord and Tenant Act 1985.

19. The Applicant says that it wrote to the Respondents to advise that it intended to undertake the required repair work and that it would be making an application to this Tribunal for an order for dispensation from the said consultation requirements. The Respondents have been advised, the Applicant says of the cost of the Works and of the need for the Works to be undertaken.

20. None of the Respondent [RESPONDENT] have objected to the application for dispensation from the statutory consultation requirements. There is no evidence before me that the Respondents have been or will be prejudiced because of a failure by the Applicant to undertake the statutory consultation process.

21. In my judgment it is just and equitable to grant dispensation from the statutory consultation requirements in respect of the Works. I am satisfied that the Works were required to be undertaken as a matter of

5 some urgency to prevent the further ingress of water and potential damage to the [NAME].

22. In reaching my decision I have taken account of the fact that no party has objected to the application. [RESPONDENT] 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 [RESPONDENT] so that they are aware of the same.

23. For completeness I confirm that in making this determination I make no findings as to the costs of the works and whether they are recoverable form [RESPONDENT] as service charges or of the possible application or effect of the Building safety Act 2022.

RIGHTS OF APPEAL

1. 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 [EMAIL] being the Regional office which has been dealing with the case.

2. 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.

3. 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.

4. 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

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