Management Company Allowed to Bypass Consultation Requirements for Urgent Roof Repairs

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AL/LDC/2024/0051 Property

Applicant : [redacted] [NAME], [NAME], Greenwich, London, [POSTCODE]

[COMPANY] : [COMPANY], Managing Agent

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

Tribunal member :

Tribunal Judge I Mohabir

Date of decision :

6 June 2024

DECISION

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 lift repairs at the property known as [NAME], [NAME], Greenwich, London, [POSTCODE] (“the property”).

2 2. The Applicant is the management company for the property and the Respondents are the long leaseholders.

3. The property is described as being a building comprised of a block of 17 flats (Flats 1-17) and 3 freehold houses (numbered 18,19 and 20).

4. It is the Applicant’s case that works were carried out were to rectify a leak in the roof from a lead box gutter, which was confirmed when a roof survey was carried out on the building on or about 15 June 2023. Apparently, the leak from the area in question was worsening due to the weather and this was having an impact on Flat 12, where there seemed to be water ingress. The guttering, felt and timbers on the roof needed to be investigated in order to locate the cause of the leak and remedial works needed to be carried out to stop the leak to prevent further water ingress.

5. The estimated cost of investigating the cause of the leak and carrying out the remedial work was £2,448 and £2,419.20 respectively. As the Tribunal understands it, the work has been carried out and the actual cost of this is unknown. However, the cost of the work does not form part of this [NAME].

6. On 21 March 2024, the Tribunal issued Directions. The Respondents were directed to respond to the [NAME] stating whether they objected to it in any way.

7. None of the Respondents have objected to the [NAME] save for the leaseholders of flats 16 and 17, who simply requested clarification about the works.

Relevant Law

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

Decision 9. As directed, the Tribunal’s determination “on the papers” took place on 6 June 2024 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.

10. 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.

11. The issue before the Tribunal was whether dispensation should be granted in relation to the requirement to carry out statutory consultation with the leaseholders regarding the overall roof works works. As stated

3 in the directions order, the Tribunal is not concerned about the actual cost that has been incurred.

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

(a) at all material times, 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 would inevitably have resulted in further significant loss of amenity to the leaseholder of Flat 12 and possibly resulted in greater overall remedial cost because of further deterioration in the fabric of the building. .

(d) 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.

13. 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.

14. 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 Mohabir Date: 6 June 2024

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.

4 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.