Simon Jones Property Management LimitedApplicantZhivka NikolovaRespondent
Before
Regional Surveyor A Clist MRICSRight Home Management Limited for the ApplicantDate 23 October 2024
DECISION
[1]The Applicant is granted 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 in respect of major works, being works associated with the ventilation of the roof, reapplication and cleaning of ridge tiles, overlay of loft insulation and repair/replacement of soffits and fascias. The Tribunal has made no determination on whether the costs of the works are reasonable or payable. The application and the history of the case[2]The Applicant applied by application dated 7 August 2024 for dispensation under Section 20ZA of the Landlord and Tenant Act 1985 (“the Act”) from the consultation requirements imposed by Section 20 of the Act.[3]The Tribunal gave Directions on 10 September 2024, explaining that the only issue for the Tribunal is whether, or not, it is reasonable to dispense with the statutory consultation requirements and is not the question of whether any service charge costs are reasonable or payable. The Directions Order listed the steps to be taken by the parties in preparation for the determination of the dispute, if any.[4]The Directions further stated that Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the directions. None did. Having considered the application further and prior to undertaking this determination, the Tribunal is satisfied that a determination on the papers remains appropriate.[5]This the Decision made on that basis and following a paper determination. The Law[6]Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where the lessor undertakes qualifying works with a cost of more than £250 per lease the relevant contribution of each lessee (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.[7]Section 20ZA provides that on an application to dispense with any or all of the consultation requirements, the Tribunal may make a determination granting such dispensation “if satisfied that it is reasonable to dispense with the requirements”.[8]The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of Daejan Investment Limited v Benson et al [2013] UKSC 14.[9]The leading judgment of Lord Neuberger explained that a tribunal should focus on the question of whether the lessee will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of the lessor to comply with the regulations. The requirements were held to give practical effect to those two objectives and were “a means to an end, not an end in themselves”.[10]The factual burden of demonstrating prejudice falls on the lessee. The lessee must identify what would have been said if able to engage in a consultation process. If the lessee advances a credible case for having been prejudiced, the lessor must rebut it. The Tribunal should be sympathetic to the lessee(s).[11]Where the extent, quality and cost of the works were in no way affected by the lessor’s failure to comply, Lord Neuberger said as follows: “I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.”[12]The “main, indeed normally, the sole question”, as described by Lord Neuberger, for the Tribunal to determine is therefore whether, or not, the lessee will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.[13]The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.[14]If dispensation is granted, that may be on terms.[15]There have been subsequent decisions of the higher courts and tribunals of assistance in the application of the decision in Daejan but none are relied upon or therefore require specific mention in this Decision. Consideration[16]The Applicant is the freeholder of the Property and is represented by its managing agent. The Respondent is the leaseholder of Flat 3. The other three flats are either vested in the Applicant (Simon Jones Property Management Limited owns Flats 1 and 2) or Simon Jones himself (Flat 4). Only the Respondent has been expressly named as a respondent in the application.[17]The Property is described as a Victorian detached building containing four one-bedroom flats over two floors. There is said to be a small outdoor lawn space and off-road parking for four cars.[18]The Applicant explains that works are ongoing to the Property, following a consultation with the Respondent. During the course of these works it has been discovered that urgent repairs are required to the roof which lie outside the scope of the consultation. The Applicant states that a structural engineer’s report has been provided, although it is noted the report is titled a ‘Schedule of Condition; Roof Report’. The said report purportedly setting out the required works which follows an inspection on 30 November 2023.[19]The report outlines a number of defects making recommendations to include the installation of appropriately placed roof vents, plastic over-cladding to soffits and fascias with the installation of vents to the soffits, the cleaning and reapplication of ridge tiles, repair to two areas of damaged roof felt and the overlay of existing loft insulation with an additional layer of mineral insulation. The report also makes a non-roof related recommendations to Flats 3 and 4 to include the installation of bathroom and kitchen extraction, relining and redecoration to external walls, installation of terracotta through-wall bricks and the installation of electric heaters to Flat 3 only. The report further recommends repair to damaged areas of render to the external elevations or for the total replacement with a silicone type render system.[20]The Tribunal further notes that the report does not make comment on the timescale required for the recommendations, with no mention as to urgency.[21]The works have not yet been started, although an invoice has been provided for the works in the sum of £6,643.38 plus VAT (giving a total of £7,972.06). The items included for within the invoice appear to align with the nature of the roof-related recommendations made within the aforementioned report with regards to roof vents, the repair/replacement of soffits and fascias and the cleaning and reapplication of ridge tiles, in addition to labour cost and the provision of scaffolding.[22]The Applicant says it will be informing the Respondent of the need for dispensation from consultation.[23]Dispensation is sought in relation to urgent roof works not included within the previous consultation with the Respondent.[24]The reason why dispensation from consultation requirements is said to be required is that the works were not included within the previous consultation and need to be completed immediately for the safety of the building and to ensure it remains habitable. As a result, funds need to be received as soon as possible to cover the cost of the works.[25]The Lease of Flat 3, 28 Eridge Road, Tunbridge Wells, Kent has been provided (“the Lease”). The Tribunal understands that the leases of the other Flats are in the same or substantively the same terms. In the absence of any indication that the terms of any other of the leases differ in any material manner, the Tribunal has considered the Lease.[26]The Applicant has various obligations under the Lease, principally set out in Clause 4, including to keep in good and substantial repair and in clean and proper order and condition the main structure, including the roof, chimney stacks, gutters, rainwater pipes, exterior walls, and foundations.[27]The lessee is required to contribute to the costs and expenses of the Applicant complying with its obligations pursuant to the Clause 4.[28]The works fall within the responsibility of the Applicant and may be chargeable as service charges.[29]The Tribunal notes that the Schedule of Condition report relates to roof-related and non-roof related defects. The Applicant states that this application refers only to roof repairs. This decision relates only to the application in hand, that being works to the roof, and as such the Tribunal’s decision is limited to the roof.[30]There has been no response from the Respondent opposing the application or indeed at all.[31]Owing to the date of the report and the date of this application the urgency of the said works is questioned by the Tribunal. Notwithstanding, none of the Lessees have opposed it or therefore asserted that any prejudice has been caused to them.[32]The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the Lessees, except for the potential delay and potential problems.[33]The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.[34]The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the building, subject to the condition that the Applicant serves upon the Respondents a copy of this Decision.[35]This decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying works. The Tribunal has made no determination on whether the costs are payable or reasonable. If a Lessee wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made. 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 to the First-tier Tribunal at the Regional office which has been dealing with the case by email at rpsouthern@justice.gov.uk[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.