Tribunal Grants Urgent Roof Repairs Dispensation Without Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BK/LDC/2021/0122 P: PAPERREMOTE Property : 84 [ADDRESS] [POSTCODE] Applicant : [redacted] : [APPELLANT] (Managing Agents) Respondents : [redacted] [NAME] (Second and Third Floor Flat) Representative : Unrepresented Type of Application : Section 20ZA Landlord and Tenant Act 1985 Dispensation with consultation requirements Tribunal member(s) : Judge Donegan Date of Paper Determination : 06 July 2021 Date of Decision : 06 July 2021

DECISION

This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was P: PAPERREMOTE. A face-to-face hearing was not held because it was not practicable, and all issues could be determined on paper. The documents that I was referred to are in a bundle of 96 pages, the contents of which I have noted.

2 Decision of the Tribunal

(a) The Tribunal grants retrospective dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘the 1985 Act’) in relation to roof repairs undertaken at 84 St Johns Wood High Street (‘[NAME]’) in October 2019. (b) No terms are imposed on the grant of dispensation. (c) The applicant shall send a copy of this decision to each of the respondents, either by email, hand delivery or first-class post and shall send an email to the Tribunal by 20 July 2021, confirming the date(s) when this was done. The application 1. The applicant seeks dispensation from the consultation requirements imposed by section 20 of the 1985 Act. The application concerns roof repairs at [NAME].

2. The application is dated 30 April 2021 and directions were issued on 24 May 2021. These provided that the case be allocated to the paper track, to be determined upon the basis of written representations. None of the parties has objected to this allocation or requested an oral hearing. The paper determination took place on 06 July 2021.

3. The relevant legal provisions are set out in the appendix to this decision. The background 4. [NAME] is a four-storey, terraced building with a shop on the ground floor and two flats on the upper floors. The applicant is the freeholder, and the respondents are the leaseholders of the two flats. [NAME] is managed by [COMPANY] (‘MAPML’).

5. MAPML were notified of water ingress to the second and third floor flat on Monday 30 September 2021. This appears to have been caused by storm damage the previous weekend. A contractor attended on 02 October, at MAPML’s request. He was unable to undertake a full repair due to access issues. He returned on 22 October 2019 with a lorry- mounted cherry picker and repaired the lead flashings, replaced missing and damaged slates and repointed a cracked wall. These repairs left [NAME] watertight. The total cost was £3,038.10, including VAT. MAPML did not undertake a section 20 consultation for the repairs.

3 The grounds of the application 6. The grounds were set out in the Tribunal application. In brief, the roof repairs were considered urgent due to the water ingress to the second and third floor flat and the risk of further damage to [NAME].

7. MAPML contend there was insufficient time to consult the respondents prior to the repairs, given the urgent nature of the work. The Tribunal’s decision 8. The Tribunal grants retrospective dispensation for the roof repairs. No terms are imposed on the grant of dispensation. Reasons for the tribunal’s decision 9. The Tribunal accepts the roof repairs were urgent, given the water ingress to the second and third floor flat and the risk of further damage. A full section 20 consultation would have taken three months or more and considerably delayed the repairs. MAPML acted promptly and reasonably in instructing the contractor to investigate the problem and repair the roof.

10. None of the respondents have contested this application or identified any prejudice that might arise from the grant of dispensation or proposed any terms as a condition of granting dispensation.

11. Having regard to the particular facts of this case and the guidance in [COMPANY] v Benson [2013] UKSC 14, it is reasonable to dispense with the consultation requirements.

12. This decision does not address the cost of the roof repairs or whether the respondents are liable to contribute to the cost via their service charges. Nothing in this decision prevents the respondents from seeking a determination of ‘payability’, pursuant to section 27A of the 1985 Act. Name: Tribunal Judge Donegan Date: 06 July 2021

4 Rights of appeal

1. 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.

2. 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.

3. 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.

4. 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 reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit.

5. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, [NAME] and the case number), state the grounds of appeal and state the result the party making the application is seeking.

6. If the Tribunal refuses to grant permission to appeal, a further application 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 [COMPANY] 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 [COMPANY] 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 [COMPANY] to the amount so prescribed or determined.] Section 20ZA (1) Where an application is made to the appropriate tribunal for a determination to dispense with all of 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. (2) In section 20 and this section –

“qualifying works” means works on a building or any other premises, and

“qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a [NAME], for a term of more than twelve months.

Section 27A (1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or

7 (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.