Tenant Admits One Breach, Landlord Fails to Prove More - First-tier Tribunal Decision

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case reference : HAV/00MS/LBC/2024/0501

Property : Flat 29 [NAME], 50-56 [ADDRESS], [POSTCODE]

Applicant: [redacted]

Respondent: [redacted]

Commonhold and Leasehold Reform Act 2002

Tribunal members : [NAME] [NAME] [NAME]

[NAME] : 12 September 2024

and venue [ADDRESS], [POSTCODE]

Date of decision : 8 November 2024

DECISION

© CROWN COPYRIGHT

Decision of the Tribunal

i. The Tribunal records that the Respondent admits to a breach of paragraph 4 of Schedule 7 of his lease such being that on or around the 24 December 2023 he set fire to a piece of charcoal which, along with a firelighter, he threw from his flat, where it landed upon the balcony of the flat below, thereby causing the destruction, by fire, of a patio chair.

ii. The Tribunal determines, on the evidence adduced, that no additional breach of paragraph 4 of Schedule 7 of the lease is made out.

The Application

1. The Applicant seeks a determination pursuant to section 168(4) Commonhold and Leasehold Reform Act 2002 (“the Act”) as to whether the Respondent is in breach of various covenants in his lease of the property. The application was dated 2 August 2004.

2. The Applicant has cited numerous tenant’s covenants within the Respondent’s lease, all of which the Applicant contends have been breached by the Respondent. In particular:

• Schedule 7, paragraph 4: Not to do or suffer to be done on the Premises or any other part of the [NAME] anything which may or may not be a nuisance, annoyance or cause damage or danger to the Landlord or the occupiers of any other apartment in the Building or any nearby or adjacent property or which may injure or tend to injure the character or reputation of the [NAME].

• Schedule 7, paragraph 3: Not to use or suffer the Premises or any other part of the [NAME] to be used for any unlawful or immoral purpose or for any political, religious or other meeting to which the public is invited.

• Schedule 7, paragraph 17: Not to suffer anything to be done which may vitiate any insurance in respect of the [NAME] or cause any increase in the premium payable in respect there on.

• Schedule 7, paragraph 24: Not to keep any paraffin or calor gas heater at the Premises.

Background

3. The Applicant is the leasehold proprietor of [NAME], 50-56 [ADDRESS], [POSTCODE] (“the building”), registered at HM Land Registry under title number HP744930.

4. The Respondent is the registered leaseholder of Flat 29 [NAME], 50-56 [ADDRESS], [POSTCODE] (“the property”) and occupies the property under title number HP744173.

5. The property is described by the Applicant as a second floor flat within a purpose-built retirement complex comprising thirty-six apartments, varying in size from one to two bedrooms. The Tribunal did not consider an inspection of the property necessary for the purpose of determining the application and nor did either party request an inspection.

6. The Applicant’s complaints primarily stem from the conduct of the Respondent whilst occupying the property, in particular, allegations pertaining to a series of incidents occurring from around December 2023 involving the deliberate setting of fires within the Respondent’s flat. The Applicant argues such incidents amount to a repeated pattern of behavior.

7. Directions were made by the Tribunal on 27 August 2024 setting out a timetable for the exchange of documents between the parties and the preparation of a hearing bundle. The hearing was set down for 12 September 2024.

8. Due to the nature of the alleged breaches but having regard to its overriding objective to deal with matters fairly and justly, including consideration of avoiding delay, the Tribunal exercised its case management powers under Rule 6(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to shorten the standard timetable for complying with Directions. Neither party objected.

9. Following a case management application made by the Applicant, the Tribunal, on 6 September 2024, extended until 4 September 2024 the date by which the Applicant’s witness statement was to be submitted.

10. These reasons address in summary form the key issues raised by the parties. They do not recite each point referred to in submissions but concentrate on those issues which, in the Tribunal’s view, are critical to this decision. In writing this decision the Chairman had regard to the Senior President of Tribunals Practice Direction – Reasons for Decisions, dated 4 June 2024.

The Hearing

11. The hearing took place on 12 September 2024 at Havant Justice Centre. The Applicant was represented by [NAME], with his instructing solicitor in attendance. The Respondent attended in person and was represented by [NAME] [COUNSEL] [NAME]. [NAME] [COUNSEL], witness for the Applicant, attended.

12. The documents that the Tribunal were referred to were contained within an electronic bundle extending to 124 pages, the contents of which have been noted by the Tribunal. References to page numbers in the bundle are indicated as [ ].

13. The hearing was recorded and such stands as a record of these proceedings.

14. At the commencement of the hearing the parties sought, and were granted, a period of fifteen minute within which to conduct negotiations.

Thereafter, [NAME] [RESPONDENT] advised the Tribunal that the Respondent admitted a single breach of paragraph 4 of Schedule 7 of his lease in regard to an incident on 24 December 2023 whereby the Respondent lit a fire within his flat which ultimately led to the destruction of a chair on the balcony of the flat beneath. The Respondent denied any additional breach.

15. [NAME] [APPELLANT] advised the Tribunal that the Applicant no longer sought to pursue any breach under paragraph 3, paragraph 17 or paragraph 24 of Schedule 7.

16. However, the Applicant refuted the Respondent’s suggestion that the events of 24 December 2023 were an isolated incident and sought to prove that the Respondent had repeatedly breached paragraph 4, Schedule 7 covenant. The hearing proceeded.

The Lease

17. The Respondent occupies the property pursuant to a lease dated 7 December 2011 and made between [APPELLANT[COMPANY] (1) and [NAME] [APPELLANT] [NAME] and [NAME] [RESPONDENT] (2) (“the lease”). The lease was assigned to the Respondent on or around 6 June 2023. A copy of the lease was provided.

18. [APPELLANT[COMPANY] changed name to [APPELLANT] on or around 27 June 2024.

The Law

19. The relevant law relating to the Tribunal’s jurisdiction in relation to breach of covenant is set out in section 168 Commonhold and Leasehold Reform Act 2002, most particularly section 168(4), which reads as follows:

“A landlord under a long lease of a dwelling may make an application to (the appropriate tribunal) for determination that a breach of a covenant or condition in the lease has occurred.”

20. The Tribunal is required to assess whether there has been a breach of the Lease on the balance of probabilities (Vanezis and another v Ozkoc and others (2018) All ER(D) 52).

21. A determination under Section 168(4) does not require the Tribunal to consider any issue other than the question of whether a breach has occurred. Whether any breach has been remedied, or the right to forfeit for that breach has been waived, are not questions which arises under this jurisdiction. Neither can the Tribunal consider a counterclaim by the Respondent as an application under Section 168(4) can only be made by a landlord. The motivations behind the making of an application are also not relevant to the determination of whether a breach has occurred.

22. In [COMPANY] v Smith (2015) UKUT 0501 (LC), Judge Gerald said this:

“The question before the F-tT ……… was the straightforward question of whether or not there had been a breach of covenant. What happens

subsequent to that determination is partly in the gift of the landlord, namely, whether or not a section 146 notice should be issued and then whether or not possession proceedings should be issued before the county court. It is also partly in the gift of the county court namely whether or not, if and when the application for possession comes before the judge, possession should be granted or the forfeiture relieved. These events are of no concern to, and indeed are pure conjecture and speculation by, the F-tT. Indeed the motivations behind the making of applications, provided properly made in the sense that they raise the question of whether or not

there had been a breach of covenant of a lease, are of no concern to the

F-tT. The whole purpose of an application under section 168, however, is to leave those matters to the landlord and then the county court, sure in the knowledge that the F-tT has determined that there has been breach.”

23. The Lease is to be construed applying the basic principles of construction of such leases as set out by the Supreme Court in Arnold v Britton (2015) UKSC 36 where, at paragraph 15, Lord Neuberger said:

“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote [NAME] in [COMPANY] v [COMPANY] (2009) UKHL 38, (2009) 1 AC 1101, para 14. And it does so by focusing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”

24. Context is therefore very important, although it is not everything. Lord

[NAME] went on to emphasise at paragraph 17:

“the reliance placed in some cases on commercial common sense and surrounding circumstances (e.g in Chartbrook (2009) AC 1101, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most likely to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language that they use in a contract. And again save perhaps in a very unusual case, the parties must have been specifically focusing on the issue covered by the provision when agreeing the wording of that provision.”

The Applicant’s case

25. [NAME] [APPELLANT] called the Applicant’s witness, [NAME] [APPELLANT], who confirmed that the contents of her statement were true [61].

26. [NAME] [APPELLANT], [NAME] Director for the Applicant, explained that she is responsible for the day to day [NAME] of [APPELLANT] sites, including safeguarding duties.

27. [NAME] [APPELLANT] evidence is that the Respondent repeatedly and deliberately set fires within the property, resulting in damage to the building and causing a risk to the life of the Respondent and other occupiers, and to the building itself. [NAME] [RESPONDENT] explained that the Respondent is said to be known to both [COMPANY] and to the police, and alleges that the Respondent has verbally admitted the behaviour he stands accused of.

28. [NAME] [NAME] detailed evidence is that on or around 4 January 2024 [NAME], the [NAME] Manager, notified her of an incident at the building concerning the Respondent.

29. The incident, now admitted by the Respondent, is that on or around 24 December 2023 the resident of the flat directly beneath the Respondent’s reported a mesh garden chair on her balcony had been destroyed by fire. On inspection, pieces of charcoal and a firelighter were found on her balcony.

30. [NAME] [NAME] states that the [NAME] manager and [NAME] manager visited the Respondent whereupon he admitted lighting the charcoal and, on becoming alarmed, says he threw the items from a window whereby they landed on the balcony below. Photographs and a ‘Near Miss’ form completed by the [NAME] Manager were exhibited [107-118]. The Respondent is said to have described himself to the manager as an arsonist. Safeguarding concerns were lodged with the Respondent’s GP and [COMPANY] and replacement smoke detectors were installed in the Respondent’s flat.

31. [NAME] [RESPONDENT] explains that the Respondent was subsequently visited by [NAME] [RESPONDENT] a Community Safety Officer at Hampshire & Isle of [NAME], and by [NAME] [RESPONDENT], a forensic psychologist. The Respondent is said to have advised them that he has a history of starting fires.

32. On 11 April 2024 ‘[NAME]’, the smoke detector monitoring service, received a fire alarm alert. On 12 April 2024 the [NAME] manager attended the Respondent’s flat and witnessed an “upturned plastic box with a scarf and hair dryer on top of it and a large can of WD40 next to it” [63], said to be fire starting equipment [119-121]. Rags were present which, the Applicant now contends, were likely to have been used to cover the smoke detectors.

33. On 17 April 2024 [NAME] [RESPONDENT] visited the property and met with the Respondent, thereafter advising [NAME] [RESPONDENT] that, in his opinion, the Respondent should not be living at [NAME]. The police attended but no further action was taken.

34. [NAME] [RESPONDENT] states that the Respondent informed other residents that he was unwell and was experiencing non-epileptic episodes. A resident is said to have attempted to make a doctor appointment for him.

35. It is [NAME] [RESPONDENT] understanding that the Respondent has continued to assemble fire starting apparatus in his flat on a daily basis. A photograph taken on 20 June 2024 was appended. Further incidents were logged with 101, the non-emergency police line, on 29 April 2024, 30 April 2024 and 20 May 2024.

36. On 23 May 2024 the [NAME] manager inspected the Respondent’s flat and noted two cans of WD40, scorch marks on the carpet and two boxes of disposable gloves beneath the kitchen sink. [NAME] [NAME] suggests the materials to be capable of starting fires and deactivating a smoke detector. Photographs were appended [122-123].

37. On 28 May 2024 the [NAME] manager made a statement to the police and, on 29 May 2024, the Respondent was arrested and items including WD40, firelighters and rubber gloves were seized. No charges were laid. A fire safety talk by [NAME] [NAME] was held on 13 June 2024.

38. In attempts to resolve matters [NAME] [NAME] arranged multi-agency meetings with herself, [NAME] [NAME], the police and [NAME] [RESPONDENT]. [COMPANY] determined that the Respondent retains mental capacity and therefore does not fall under their duty of care.

39. The [NAME] manager attended the Respondent’s flat on 28 May 2024, 7 June 2024, 12 June 2024, 11 July 2024 and 26 July 2024, and, on each occasion found equipment capable of starting a fire. [NAME] [NAME] explains that the situation is causing anxiety amongst other residents, with one resident having allegedly been requested by the Respondent to disconnect his smoke alarm.

40. [NAME] [RESPONDENT] concluded her witness evidence with a statement that whilst the Applicant explored every avenue to support the Respondent she does not consider it appropriate for him to continue living at the property.

41. In closing submissions, [NAME] [NAME] argued that, on the balance of probabilities, there was sufficient evidence before the Tribunal from which to determine that, contrary to paragraph 4 of Schedule 7 of his lease, the Respondent was engaging in a pattern of behavior that was causing nuisance, annoyance and danger to other residents and to the building, and that such behavior was ongoing.

42. [NAME] [RESPONDENT] was critical of the Respondent’s decision not to provide a witness statement, nor to give oral evidence at the hearing. He said that the Respondent had failed to explain the carpet scorch marks or the assembly of hairdryer, box and scarf. He said that the Respondent had admitted an urge to light fires and that the Respondent had described himself as an arsonist, and that whilst such evidence was hearsay, it is not denied by the Respondent.

43. [NAME] [RESPONDENT] says that the Respondent demonstrates a repeated pattern of behavior which poses a substantial fire risk to all residents and the building, and upon which the Applicant has a duty to act.

The Respondent’s case

44. The Respondent’s case is that the events of 24 December 2023, now admitted, were an isolated incident. Whilst the Respondent acknowledges being in possession of the items seized, [NAME] [APPELLANT] argued that the Applicant had failed to prove that the Respondent’s intent was to use such items to start fires within his flat as opposed to their natural everyday use.

45. [NAME] [NAME] suggests that it would not be unusual to find disposable gloves beneath a kitchen sink and that the rags, allegedly used for covering the smoke alarm, are likely to be found in a home. He described WD40 as a lubricant with multiple household uses. [NAME] [NAME] says that there is no clear evidence that the gloves, WD40, hairdryer or rags were used for the purposes alleged and, accordingly, that the Applicant’s evidence was not up to proof.

46. [NAME] [APPELLANT] points to a lack of witness statements from any of the parties referred to in [NAME] [NAME] evidence, namely the [NAME] manager, [NAME] manager, [NAME], police or any resident at [NAME]. Furthermore, no record or documentation was produced in support of the claims of multiple inspections, meetings of various agencies and public services, or of any reports to the police non-emergency phoneline.

47. [NAME] [RESPONDENT] explains that the Respondent is intent on leaving the property but that securing appropriate alternative accommodation is taking time.

Consideration and Findings of fact

48. The burden of proof rests with the Applicant and it is for them to evidence sufficient facts to show that the covenants in question have been breached. The Tribunal considered the alleged breaches from this perspective.

49. The Tribunal records the Respondents’ admission that he breached paragraph 4 of Schedule 7 of his lease on or around 24 December 2023.

50. Whilst undoubtedly it would have proven useful to have heard from the Respondent it was his prerogative not to adduce a witness statement or to address the Tribunal. The Tribunal were aware that the Applicant had, in earlier correspondence sent to the Tribunal, raised a point in relation to the Respondent’s mental capacity. It was apparent to the Tribunal that [NAME] [RESPONDENT] found the proceedings and courtroom environment uncomfortable. In pursuance of the Tribunal’s overriding objective to deal with matters fairly and justly, the Tribunal deliberated as to whether it was appropriate to proceed with the hearing and concluded that, as the Respondent was represented by Counsel, it was appropriate to do so. Additional time was, on occasion, afforded to [NAME] [NAME] during and at the conclusion of the hearing in order that he could explain matters to his client.

51. Whilst the Tribunal found [NAME] [NAME] to be a credible witness we also find that she lacked first-hand knowledge of many of the events relied upon. [NAME] [NAME] evidence was heavily reliant upon hearsay, which, whilst admissible, could not be tested by questioning. Accordingly, the Tribunal was required to decide what weight should be attributed to such

evidence.

52. [NAME] [NAME] explained the [NAME]’ absence as being due to sickness. However, the bundle of documentation upon which the Applicant relied included no witness statement from the [NAME] manager. Nor did the Applicant provide witness statements from the Applicant’s [NAME] manager or [NAME] [APPELLANT] or [NAME] [APPELLANT], these being the key individuals with first-hand knowledge of the events relied upon. Neither were any notes from the three multi-agency meetings provided, two of which [NAME] [NAME] says she attended. [NAME] [NAME] referred to the repeated involvement of the police and [COMPANY], and that multiple incidents were logged to the non-emergency police line. However, no records of any official third party intervention were provided. Nor were any witness statements before the Tribunal from residents attesting to what [NAME] [RESPONDENT] had told them. The Tribunal therefore finds there to be insufficient evidence from which to draw conclusions.

53. The Tribunal finds itself in agreement with [NAME] [NAME] that a number of the items seized, including WD40, hairdryer, disposable gloves and rags have everyday domestic use and the possession of such items does not, in itself, prove that the Respondent had intended to set fires within his property or to disable the smoke alarm.

54. Having considered the evidence and submissions carefully the Tribunal finds, by a small margin, that the burden of proof, such being the balance of probabilities, has not been discharged by the Applicant.

DECISION

55. The Tribunal records that the Respondent admits to a breach of paragraph 4 of Schedule 7 of the lease in that on, or around, 24 December 2023 the Respondent set fire to a piece of charcoal which, along with a firelighter, he threw from his flat, whereupon it landed on the balcony of the flat below, thereby causing the destruction, by fire, of a patio chair.

56. The Tribunal determines, on the evidence adduced, that no additional breach of paragraph 4 of Schedule 7 of the lease is made out.

Costs

57. Neither party made any application to the Tribunal in respect of costs.

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 by email to [EMAIL] to the First-tier Tribunal at the [NAME] 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.

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case reference : HAV/00MS/LBC/2024/0501

Property : Flat 29 [NAME], 50-56 [ADDRESS], [POSTCODE]

Applicant: [redacted]

Respondent: [redacted]

Commonhold and Leasehold Reform Act 2002

Tribunal members : [NAME]

[NAME] : 12 September 2024

and venue [ADDRESS], [POSTCODE]

Date of decision : 8 November 2024

DECISION

© CROWN COPYRIGHT

Decision of the Tribunal

The Application

Background

The Hearing

11. The hearing took place on 12 September 2024 at Havant Justice Centre. The Applicant was represented by [NAME], with his instructing solicitor in attendance. The Respondent attended in person and was represented by [NAME] [COUNSEL] [NAME]. [NAME] [COUNSEL] [NAME], witness for the Applicant, attended.

The Lease

The Law

20. The Tribunal is required to assess whether there has been a breach of the Lease on the balance of probabilities ([NAME] and another v Ozkoc and others (2018) All ER(D) 52).

“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord [NAME] in [COMPANY] v [COMPANY] (2009) UKHL 38, (2009) 1 AC 1101, para 14. And it does so by focusing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”

[NAME] went on to emphasise at paragraph 17:

“the reliance placed in some cases on commercial common sense and surrounding circumstances (e.g in [NAME] (2009) AC 1101, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most likely to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language that they use in a contract. And again save perhaps in a very unusual case, the parties must have been specifically focusing on the issue covered by the provision when agreeing the wording of that provision.”

The Applicant’s case

The Respondent’s case

Consideration and Findings of fact

evidence.

DECISION

Costs

RIGHTS OF APPEAL