28 Eridge Road, Tunbridge Wells, TN4 8HJ CHI/29UQ/LDC/2023/0116-28-ERIDGE-ROAD-TUNBRIDGE-WELLS-TN4-8HJ
DECISION
The Tribunal grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the works to the basement referred to in section 4 of this decision. In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable. The Applicant must send copies of this determination to the lessees. Background[1]The Applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act. The application was received on 27 September 2023.[2]The property is described as a “Victorian Detached Building, containing 4, 1 bedroom flats, spread across 2 floors. With small outdoor lawn area and parking for 4 cars.”[3]The Applicant explains that. “We issued a Section 20 Notice of Intent on 10th January 2023, as the property was suffering dilapidations and damp, during the process of gathering estimates, we have discovered that the building requires urgent works to repair structural issues. We include the structural engineers report on works required and reports for this including to prevent black mould and structural damage to the property. The first section 20 notice of intent that was issued on 10th January 2023, a consultation period was carried out with the leaseholder. We will now be informing the leaseholder of the need for a dispensation due to the urgent works that need to take place as soon as possible. We require dispensation as the works are urgent including structural repairs and need to be carried out as soon as possible to keep the property in a habitable condition.”[4]The structural engineers report recommended the following works;• Repairing all the drainages pipes to avoid new infiltration of water and flooding into the basement.• Underpinning the existing basement to create a reinforced concrete slab for supporting the basement and the superstructure because this flooding into the basement could wash away the soil under the existing foundation of the basement and create structural issues in the property.• Waterproofing the basement and it is suggested to install a sump pump system to keep the property safe from water ingress and leaks.[5]The Tribunal made Directions on 3 October 2023 and sent them to the parties setting out a timetable for the disposal together with a form for the lessees to indicate to the Tribunal whether they agreed with or opposed the application and whether they requested an oral hearing. If the Leaseholders agreed with the application or failed to return the form they would be removed as a Respondent although they would remain bound by the Tribunal’s Decision.[6]No replies were received by the Tribunal and the Applicant confirmed that none had been received by them. No requests for an oral hearing were made and the matter is therefore determined on the papers in accordance with Rule 31 of the Tribunal’s Procedural Rules.[7]Before making this determination, the papers received were examined to determine whether the issues remained capable of determination without an oral hearing and it was decided that they were, given that the application remained unchallenged. The Law[8]The relevant section of the Act reads as follows: S.20 ZA Consultation requirements: 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.[9]The matter was examined in some detail by the Supreme Court in the case of Daejan Investments Ltd v Benson. In summary the Supreme Court noted the following.a. The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.b. The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.c. Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.d. The Tribunal has power to grant a dispensation as it thinks fit, provided that any terms are appropriate.e. The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s application under section 20ZA (1).f. The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants.g. The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant.h. The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.i. Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. Evidence[10]The Applicant’s case is set out in paragraph 2,3 and 4 above. Determination[11]Dispensation from the consultation requirements of S.20 of the Act may be given where the Tribunal is satisfied that it is reasonable to dispense with those requirements. Guidance on how such power may be exercised is provided by the leading case of Daejan v Benson referred to above.[12]No objections have been received from the lessees and in these circumstances I am prepared to grant dispensation.[13]The Tribunal therefore grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of the works to the basement referred to in section 4 of this decision.[14]In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.[15]The Applicant must send copies of this determination to the lessees. D Banfield FRICS 23 October 2023 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 rpsouthern@justice.gov.uk to the First-tier Tribunal at the Regional 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.