Case No CAM/34UF/LDC/2024/0051-FLATS-1-6-46-DERNGATE-NORTHAMPTON-NN1-1HS
Between
Mr and Mrs Baker, trading as Homestead Investments (Applicant Landlord)ApplicantAll leaseholders of dwellings at the PropertyRespondent
Before
Judge Bernadette MacQueenKerry Dickinson, Kingston Real Estate (Property Management) Ltd for the ApplicantDate 18 November 2024Property: Northampton, NN1 1HS Mr and Mrs Baker, trading asType of application: the Landlord & Tenant Act 1985
DECISION
[1]The Tribunal determines that it is reasonable for the Applicant to dispense with the consultation requirements in relation to the works for the reasons set out in this decision. Introduction[2]The Applicant sought an order pursuant to s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) for dispensation of the consultation requirements in respect of qualifying works to replace the roof at Flats 1-6, 46 Derngate, Northampton, NN1 1HS (the Property).[3]The Applicant was the Landlord of the Property, and the Respondents were the Leaseholders.[4]A bundle of documents consisting of nine sections was provided to the Tribunal by the Applicant. This included a quote for the works as well as letters that were sent to the leaseholders. The Application[5]The Applicant stated in their application to the Tribunal that there was a water leak through the roof at the Property which caused significant damage and health and safety concerns for the residents. The Applicant confirmed that works were required to replace the roof and that this was urgent so as to avoid further water ingress into the Property and to allow the flats to become habitable again.[6]The letter sent to leaseholders dated 24 August 2024 (section four of the bundle) explained that the roof to the Property was leaking and that this had cause significant damage to four flats (flats 1, 3, 5 and 6), three of which had to be vacated. The letter further stated that a new roof was required as patch repairs were no longer working, and that in order for the work to be undertaken as soon as possible, an application had been made for dispensation from the consultation requirements to this Tribunal. Further, the letter explained that the cost of the works was expected to be met through the existing service charge reserves.[7]On 18 September 2024, the Tribunal issued Directions which required the Applicant by 4 October 2024 to send to each of the Respondents documents including a copy of the application form, estimate of the cost of the works and the Tribunal’s Directions. Any Respondents who wished to oppose the application had until 18 October 2024 to complete a reply form and send it to the Tribunal, and also send to the Applicant a statement in response to the application and a copy of the reply form.[8]A letter dated 2 October 2024 (section 5 of the bundle) was sent to the Leaseholders which enclosed a copy of the Tribunal’s Directions, along with a copy of the application form that had been submitted to the Tribunal.[9]By letter dated 8 October 2024 (section 8 of the bundle), the Applicant notified the Tribunal that the documents that were required by the Tribunal’s Directions to be sent to the leaseholders of the Property were sent on 2 October 2024 by 1st class post.[10]The Applicants confirmed (within the chronology) that they had not received any objections to the application. The Tribunal also did not receive any objections. Relevant Law[11]This is set out in the Appendix annexed below. The only issue for the Tribunal is whether it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether any service charge costs will be reasonable or payable, or the possible application or effect of the Building Safety Act 2022. Decision[12]The Tribunal’s determination took place without parties attending a hearing, in accordance with the Tribunal’s Directions. This meant that this application was determined on 18 November 2024 solely on the basis of 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.[13]The relevant test to be applied is set out in the Supreme Court decision in Daejan Investments Ltd v Benson & 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 financial prejudice in this way.[14]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 works. As stated in the Directions order, the Tribunal was not concerned about the actual cost incurred.[15]The Tribunal was satisfied that the Respondents have been properly notified of this application and had not made any objections.[16]Accordingly, the Tribunal granted the application for the following reasons:(a) The Tribunal was satisfied that the nature of the works had to be undertaken by the Applicant sooner rather than later and noted in particular that the repair to the roof was required to prevent water ingress into the building and to allow flats to become habitable again.(b) The Tribunal was also satisfied that if the Applicant carried out statutory consultation, it was likely that there would be delay.(c) The Tribunal was satisfied that the Respondents have been kept informed of the need, scope and estimated cost of the proposed works.(d) The Tribunal was satisfied that the Respondents have been served with the application and the evidence in support and there has been no objection from any of them.(e) 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 making a separate service charge application under section 27A of the Act.[17]The Tribunal, therefore, concluded that the Respondents were not being prejudiced by the Applicant’s failure to consult and the application was granted as sought.[18]It should be noted that in granting this application, the Tribunal made no finding that the scope and estimated cost of the repairs are reasonable. Name: Judge Bernadette MacQueen Date: 18 November 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. 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 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). 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 accordance with, the regulations is limited to the amount so prescribed or determined. Section 20ZA (1) Where an application 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.