Tribunal Appoints New Manager Due to Lease Breaches

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AP/LAM/2022/0001 Property : 38 [ADDRESS] [POSTCODE] Applicant : [redacted] : Mr [COUNSEL], counsel Respondent : [redacted] Representative : [NAME]

Tribunal members

: Judge Tagliavini Mr C Gowman BSc Ms J [ADDRESS] and date of hearing

: 10 [ADDRESS] [POSTCODE] 13 April 2022

Date of decision

10 May 2022

DECISION

Covid-19 pandemic: description of hearing This has been a remote audio/video hearing which has not been objected to by the parties. The form of remote hearing was V:VIDEOREMOTE. A face-to-face hearing was not held because no-one requested the same, or it was not practicable, and all issues could be determined in a remote hearing. The documents the tribunal were referred to are in three bundles of 1568, 149 and 510 pages, the contents of which have been considered. The order made is described at the end of these reasons. __________________________________________________________ The tribunal’s summary decision

(1) The tribunal appoints Ms [NAME] of [NAME] as the

manager of premises situate at 38 [ADDRESS] [POSTCODE] from the

date of this decision until 24 March 2025 (or such date as represents the end of

the service charge year in 2025 (if different) in accordance with the terms of

the Management Order attached.

The [NAME]

1. This is an [NAME] made pursuant to s.24 of the Landlord and Tenant Act

1987 (‘the 1987 Act’) seeking the appointment of a manger for premises

known as 38 [ADDRESS] [POSTCODE] (‘the premises’). The

premises comprise a semi-detached house containing Flats A

(basement flat with garden), B (flat on ground and lower ground floor with

garden), C (first and second floor maisonette) and D (first and second

floor maisonette). Each of the leases to the four flats have been extended to

999-year terms.

2. The applicant seeks the appointment of Ms [APPELLANT] on the grounds set

out in the section 22 Notice dated 2 December 2021. This alleged (i)

numerous breaches of the lease by the respondent; (ii) the proposal by the

respondent for the payment of unreasonable service charges; (iii)

breaches of the RICS management code (3rd edition) and (iv) the existence of

other circumstances that make it just and reasonable for a manager to be

appointed.

3. The respondent accepted in principle (subject to the issue of the validity of the

section 22 Notice), that a manager should be appointed pursuant to s. 24(2)(b)

of the 1987 Act and proposed Mr [NAME] of [COMPANY] as the appropriate person to be appointed by the tribunal.

The hearing – A preliminary issue

4. As the respondent contested the validity of the section 22 Notice on the grounds

that it had not been validly served. It was asserted that service by post to the

premises addressed to the respondent only, was insufficient for the Notice to

have been brought to the attention of any of the directors of the

[COMPANY].

5. Mr [RESPONDENT] told the tribunal that as he had been away from the

premises, the section 22 Notice did not come to his attention until after his

return on 4 January 2021 when he received notification on 29 January 2021

from the tribunal of this [NAME]. Mr [NAME] stated that he would

have expected the letter containing the Notice to have been addressed to

individual directors, although accepted that had he seen the Notice on the table

in the communal hallway he would have picked it up and opened it as

could any of the other directors. Mr [APPELLANT] also asserted that the

applicant knew the Notice had not been opened by anyone, as it left in the

communal hallway and chose to issue this [NAME] anyway.

6. Mr [NAME] also challenged the validity of the Notice on the basis that the

time scale for rectification of the items specified in the Notice was too short

and that the matters complained of could not have been remedied within the

specified timescale.

7. Mr [APPELLANT] for the applicant submitted that it was for the directors of the

[COMPANY] to ensure there were proper procedures in place to deal

with letters and Notices sent to the company. In this instance it was proper

procedure to send the Notice by first class post to the premises addressed to the

[COMPANY].

8. Mr [RESPONDENT] also asserted that the time specified in the Notice to rectify certain

items did not invalidate the Notice itself, at the highest, the time specified or

lack of it, only went to that particular item and did not invalidate the

whole of the Notice. In any event many of the acts required to be carried out

were sequential in nature and therefore the time allowed was sufficiently

long for the items specified to be remedied.

Preliminary issue – the tribunal’s decision

9. The tribunal is satisfied that the section 22 Notice was validly served having

been sent by first class post to the [COMPANY] at the subject

premises. The tribunal finds that it is for the respondent to ensure that

proper procedures are in place for dealing with all correspondence, including

this Notice at all times and even during periods of a director’s absence.

10. The tribunal also finds that the Notice was not invalidated, either in whole or in

part by the time periods specified for the carrying out of remedial action by

the respondent.

The manager

11. After the determination of the preliminary issue the respondent conceded it was

appropriate to appoint a manager under s.24(2)(b) of the 1997 Act. The

tribunal was also satisfied, having had regard to extensive documentation

provided by both parties, that it was appropriate for a manager to be appointed

under s.24(2)(b) of the 1987 Act. Therefore, the only issue remaining in dispute

between the parties was the identity of the manager and the terms of the

Management Order.

12. The tribunal heard oral evidence from both proposed managers and were

provided with statements of their respective qualifications and experience as

well as proposed terms of appointment in their respective Management Plans

and the respondent’s draft Management Order

The tribunal’s decision

13. On 21 April 2022 and after the conclusion of the hearing, both parties sent

uninvited, into the tribunal opposing proposed Management Orders. As the

terms of the Management Order had not been agreed by the parties and

neither the parties or the tribunal had the opportunity to ask questions of the

other about its terms, the tribunal disregarded this evidence and relied only

upon the documentary evidence provided and the oral evidence given at the

hearing of the [NAME].

14. The tribunal finds both proposed managers to be qualified and highly

experienced, with both having been appointed on numerous occasions by the

tribunal as managers. However, in this instance the tribunal preferred the

more detailed evidence and approach of Ms [NAME] set out in her Management

Plan dated 22 February 2022, to that of Mr [NAME] who spoke to his witness

statement dated 21 March 2022 but appeared unfamiliar in parts with the draft

Management Order the respondent relied upon and accepted he had ‘Not

studied it in detail.’ In contrast, Ms [NAME] in her evidence expressly

approved the terms of the draft Management Order relied upon by the

applicant which omitted any reference to the involvement or approval of the

directors of the [COMPANY] having to be sought.

15. Therefore, in the circumstances, the tribunal finds Ms [NAME] to be the

appropriate person to be appointed as manager of the subject premises.

16. In considering the appropriate terms to be included in the Management Order,

the tribunal had regard to the drafts of both parties submitted within their

respective bundles. The tribunal finds that a number of the provisions included

in the respondent’s draft to be inappropriate, as a number of them included the

requirement of the appointed managed to consult with the [COMPANY] directors before taking to take various actions in the management of

the subject property.

17. The tribunal determined that these clauses would have the effect of limiting the

Manager’s independence and objectivity as a tribunal appointed manager. As

the grounds for [NAME] this [NAME] substantially concerned the alleged

failures to carry out repairs and other works, the tribunal drew up the

Management Order to reflect these concerns.

18. The tribunal directs that Ms [NAME] is appointed as manager of the

subject premises under the terms of the Management Order attached to

this decision.

Section 20C

19. The applicant made an [NAME] under section 20C of the Landlord and

Tenant Act 1985 in order that the respondent’s costs of this [NAME] should

not be added to the service charges. The respondent opposed this order.

20. The tribunal declines to make an order under section 20C. The tribunal finds

that as a tenant owned [COMPANY] the benefit and costs of the

[NAME] to appoint a manager should be shared equally among the lessees.

Name: Judge Tagliavini

Date: 10 May 2022

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).