Service Charge Determination and Conditions for Payment

OUTCOME: Allowed

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HMCTS code (audio, video, paper)

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

V: CVPREMOTE

Case reference

: CAM/26UE/LSC/2021/0017

Property

: [ADDRESS]

[POSTCODE]

Applicant: [redacted] [APPELLANT]

Respondent: [redacted]

: Ms [COUNSEL] of [NAME] of Application : 14 March 2021

Type of application : Application for a determination of liability to pay and reasonableness of service charges

The Tribunal

: Tribunal Judge S [NAME]/ place of hearing : 10 August 2021

By cloud video platform

Date of decision : 16 August 2021

_________________________________

DECISION _________________________________ ©

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Pursuant to rule 35(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal considers it appropriate, at the request of the parties, to make a consent order in terms set out below.

Covid-19 pandemic: description of hearing This has been a remote video hearing which was not objected to by the parties. The form of remote hearing was V: CVPREMOTE. A face-to-face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents before us were in a bundle of 280 pages. REASONS

Introduction

1. By their application, the Applicants seek a determination of reasonableness of service charges.

2. Following directions from the Tribunal, the parties completed a Scott Schedule of Disputed Service Charges.

3. This revealed that all bar 2 of the items in dispute were still in issue.

4. There is a linked case for dispensation of consultation requirements pursuant to s.20ZA of the Landlord and Tenant Act 1985, under case reference CAM/26UE/LDC/2021/0028. There is a separate decision in relation to that case.

The Hearing

5. At the outset of the hearing, the parties agreed the figure for the final item on the Scott Schedule, concerning insurance for the service charge year ending 2021.

6. This left the only item in dispute to be the Applicants’ contribution to be major works (internal/external decorations) for 2019.

7. After hearing full representations from the parties, it appeared to the Tribunal that the parties were not far apart, and invited [NAME] [NAME] and Ms [NAME] to leave the virtual hearing room to see if they could settle their differences.

8. The parties were willing to compromise, and pursuant to Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013,

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the Tribunal considers it appropriate, at the request of the parties, to make a consent order in the following terms:

(1) It is agreed that the Applicants are liable to the Respondents in the following sums in respect of their service charges:

(a) Major works (internal/external decorations) for 2019: £2750 (b) Insurance for 2019: £172.72 (rebate of £138.57) (c) Insurance for 2020: £215.89 (rebate of £238.34) (d) Insurance for 2021: £238.28 (rebate of £215.95)

(2) The Respondents’ costs (if any) in connection with this application should not be regarded as relevant costs to be taken into account in determining the amount of any service charge or administration charge payable by the Applicants (Flat 3) and [NAME] (Flat 1) and [APPELLANT] ([NAME]), pursuant to s.20C of the Landlord and Tenant Act 1985/ para. 5A of Sch.11 to CLARA 2002.

(3) The Respondents shall reimburse the Applicants the sum of £1000 from their service charge account, by 31 August 2021.

(4) The Respondents shall reimburse the Applicants the sum of £300, being the application fee and the hearing fee, by the same date.

9. The Tribunal concludes by thanking the parties for their sensible concessions, and the way in which the hearing was approached.

Name: Tribunal Judge S Evans Date: 16 August 2021.

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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28 day time limit, such application 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

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reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application 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 making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).

HMCTS code (audio, video, paper)

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

P: PAPERREMOTE

Case reference

: CAM/26UE/LSC/2021/0017

Property

: [ADDRESS]

[POSTCODE]

Applicant: [redacted] [APPELLANT]

Respondent: [redacted]

: Ms [COUNSEL] of [NAME] of Application : 14 March 2021

Type of application : Application for a review/permission to appeal

The Tribunal

: Tribunal Judge S [NAME] of original decision

: 16 August 2021

Date of this decision : 3 December 2021

_________________________________

DECISION _________________________________ ©

Covid-19 pandemic: description of hearing

This has been a remote decision. The form of remote decision is P: PAPERREMOTE. A face-to-face hearing was not held because this is an application for permission to appeal. The documents before the Tribunal are contained in the original bundle, plus relevant emails from the Applicants and the Respondents, as set out below.

DECISION

1.The Tribunal determines that it will conduct a review pursuant to rules 53 and 55 of the First-tier Tribunal (Property Chamber) Rules 2013 because it is satisfied that an appeal, if brought, is likely to be successful.

2.In so far as it is necessary, the Tribunal treats the Applicants’ email dated 27 September 2021 as an application for permission to appeal, and grants an extension of time to bring such an appeal.

3.The Tribunal corrects its decision dated 16 August 2021, in the terms set out below.

4.In accordance with section 11 of the Tribunals, Courts and Enforcement Act 2007 and rule 21 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, either party may make further application for permission to appeal to the Upper Tribunal (Lands Chamber). Such application must be made in writing and received by the Upper Tribunal (Lands Chamber) no later than 14 days after the date on which the First-tier Tribunal sent notice of this refusal to the party applying for permission to appeal.

5.The Upper Tribunal (Lands Chamber) may be contacted at: 5th [ADDRESS] [POSTCODE] (tel: [PHONE]); or by email: [EMAIL] .

REASONS

Background

1. On 16 August 2021 the Tribunal issued 2 linked decisions, one concerning payability of service charges and another regarding dispensation with consultation requirements (CAM/26UE/LDC/2021/0028).

2. On 27 September 2021 the Applicants sent an email to the Tribunal in these terms:

“However, looking at the Decisions in respect of the 2 cases, whereas the obligation to complete the works by September 17th was clearly part of the consent order in respect of case CAM/26UE/LSC/2021/0017, it has instead been merely recorded as being a condition for the granting of dispensation under case CAM/26UE/LDC/2021/0028 and hence, the only impact based on this decision of the works not being undertaken is that dispensation has not been granted. Therefore, as currently drafted, I do not believe the Decision will allow me to get the decision enforced. Please can you therefore advise as to how I can get this matter addressed so that the Decision under case CAM/26UE/LSC/2021/0017 correctly records that points b) and C) of clause 12 of the Decision under CAM/26UE/LDC/2021/0028 should be included under clause 8 of the Decision for case CAM/26UE/LSC/2021/0017.”

3. On 29 September 2021 a procedural Judge considered that “the leaseholder(s) appear to be asking that the terms of the consent order in the decision on the service charge application… be varied to oblige the landlord to complete the works (or, possibly, to confirm that the leaseholders are not liable to pay the relevant charges unless the dispensation conditions are satisfied)”.

4. The judge decided the Tribunal could not assist with this request, having no jurisdiction in the application to order the landlords to carry out works; and moreover, that the terms of the consent order could not be changed without the agreement of the parties.

5. On the same day, the Applicants responded to clarify but they were not looking for the consent order to be varied as such, but merely to be corrected to reflect what was agreed between the parties in front of the hearing judge.

6. On 8 November 2021 the Applicants sent the Tribunal a transcript of the whole hearing, submitting that parts of it supported their contentions made in their email of 27 September 2021.

7. On 9 November 2021 the Tribunal directed that the Respondents may file representations in relation to the Applicant’s email of 27 September 2021, by 4pm on Friday 19 November 2021, and in default be debarred from making any representations.

8. On 19 November 2021 at 15:59, Ms [RESPONDENT] on behalf of the Respondent, filed an email which explained why the works had allegedly been delayed. She did not address the terms of the Applicants’ email of 27 September 2021.

9. On 21 November 2021 the Applicants provided a response to Ms [NAME] explanation of delayed works.

10. On 25 November 2021, Ms [NAME] on behalf of the Respondents, filed an email, which attached (amongst other documents) what was said to be an independent surveyor’s findings after a snagging inspection on 24 November 2021. Again, she did not address the terms of the Applicants’ email of 27 September 2021.

Decision

11. Having considered the transcript of hearing, the Tribunal accepts the Applicants’ contention that the decision dated 16 August 2021 in this case (CAM/26UE/LSC/2021/0017) does not accurately reflect the parties’ true agreement.

12. The procedural Judge was correct in the response given on 29 September 2021, having assumed that the decision of 16 August 2021 in the instant case accurately reflected the parties’ agreement.

13. This Tribunal’s task, however, is to ascertain the true bargain of the parties, as presented at the hearing.

14. The relevant part of the transcript for these purposes is as follows (p.2, lines 10-15):

“So, agree to pay £2,750 for decorations in their entirety, that is internal and external, and will include the painting of the internal face of the front door by 17 September; the surveyor’s inspection and any snags done by 30 September; that the applicant shall be reimbursed £300 for the hearing and application fees and there be a Section 20C order in favour of the applicants, on paragraph 5A I will say as well”.

15. The Tribunal then went on to consider the dispensation application separately, in these terms (p.2, lines 23-28):

JUDGE EVANS: So, so far so good. I think we are also in a position to record, under Rule 35, a dispensation for the consultation requirements because you have seen the emails now, [NAME] [APPELLANT]. [NAME] from [NAME] sent one today at 11.54, and then [NAME] has sent one on a screenshot from a phone that she does not object to the dispensation. So, it would seem to the Tribunal that we are able to grant dispensation by consent as well…

16. And on p.3:

JUDGE EVANS: … So again, it would be dispensation on the basis that the works in terms of price are capped for [NAME] [APPELLANT] only at £2,750, but also on condition that they are completed by 17 September and that the snags are done by 30 September, yes? Does that seem fine, dispensation on that basis? [NAME]: Absolutely.

17. The Respondents’ representations dated 19 November 2021 do not take issue with what the Applicants say happened at the hearing. Neither do the representations dated 25 November 2021, even assuming the Tribunal could have regard to them, given that a debarring order has been made.

18. In the circumstances the Tribunal agrees to review its decision dated 16 August 2021, and in so far as is necessary, grants the Applicants an extension of time to request their review, given that in practical terms there was little purpose to be gained in their approaching the Tribunal until the deadline for the works had passed on 17 September 2021.

19. Accordingly, pursuant to Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal considers it appropriate to make a consent order in the following terms:

(2) The works will include the painting of the internal face of the front entrance door;

(3) All works will be completed by 17 September 2021;

(4) The Applicants will undertake a surveyor’s inspection and complete all snagging by 30 September 2021;

(5) [NAME] [APPELLANT]’s liability to pay for the works is capped at £2750.

(6) The Respondents’ costs (if any) in connection with this application should not be regarded as relevant costs to be taken into account in determining the amount of any service charge or administration charge payable by the Applicants (Flat 3) and [NAME] (Flat 1) and [APPELLANT] ([NAME]), pursuant to s.20C of the Landlord and Tenant Act 1985/ para. 5A of Sch.11 to CLARA 2002.

(7) The Respondents shall reimburse the Applicants the sum of £1000 from their service charge account, by 31 August 2021.

(8) The Respondents shall reimburse the Applicants the sum of £300, being the application fee and the hearing fee, by the same date.

20. Finally, the Tribunal confirms that it does not have jurisdiction to order the landlords to carry out works. The Applicants and the Respondents may wish to take legal advice on any proposed enforcement of the agreement.

Name: Tribunal Judge S Evans Date: 3 December 2021.