Trotsworth Court, Christchurch Road, Virginia Water, GU25 4AG CHI/43UG/LAM/2023/0005
DECISION
[76]Section 24 of the Landlord and Tenant Act sets out the test that the Tribunal must apply when considering any application for the appointment of a Manager. In summary these comprise a determination that the existing 17 management has failed in an obligation owed to the tenant under his tenancy, has failed in complying with any code of practice and approved by the Secretary of State and finally whether it is just and convenient to make the appointment.[77]Any failure of management must be in respect of duties owed as between landlord and tenant and does not concern the internal operation of the landlord company.[78]The first area that the Tribunal must consider are any failures to abide by the Respondent’s obligations under the lease and to abide by the RICS Code. These are:• A failure to provide access on to Gorse Hill Lane• A conflict of interest regarding placing contracts for tree works• Failure to replace trees as required• Failure to enforce lessees’ covenants• A potential QLTA required in respect of the electric charge point• Confusion between responsibilities of landlord and managing agent[79]Regarding the RICS code the issues were;• To abide by the requirements of Part 2 Ethics in respect of• 2.1 A failure of “The duty of care and skill” in respect to the locked gates and lack of access.• 2.2.1 A lack of the required transparency in respect of the failure to conduct an audit and no clear demarcation between the landlord and its managing agent• 2.2.12 & 4.17 Disputes that the managing agent has visited the site for the alleged 33 times.• 2.4 Discriminated against by not responding to his emails• 3.4 (e) No estimates provided for roadway• 3.4 (o) Failed to provide advice on day to day management policy otherwise his requests for a fire inspection would not have been ignored• 3.5 Failure to deal with breaches of lease• 3.7 By provision of Company Secretary service must make any failure in company management relevant• 4.3 Failure to abide by GDPR requirements in respect of releasing information to Keenes[80]With regard to the provision of access on to Gorse Hill Lane the Tribunal does not accept such access was not contemplated when drawing up the leases. The Wentworth Estate, which it is understood to control Gorse Hill Lane, was a party to the lease and as such was perfectly able to grant rights over it. By keeping the gates locked, lessees have been prevented from exercising a right of “ingress to and egress from the demised premises …… at all times over and along that part of the roadway known as Gorse Hill Lane.” 18[81]The Tribunal does not accept that the use of the same company to both survey trees and conduct any subsequent work is a conflict of interest. This is fairly standard practice and no prejudice has been identified.[82]The draftsman of Clause 4 (vii) in respect of the replacement of trees cannot have intended that each and every tree that germinated on the site from the date of the lease that died or otherwise felled should have to be replaced by the same number. If that were to be the case every seed that grew would have to be preserved and over time the estate would become completely overgrown. The Tribunal finds that the requirement is to maintain the current environment of extensive tree and shrub planting felling, pruning and replacing where necessary. As such the Respondent is complying with its obligations.[83]The example of the “projection” cited as failure to enforce lessees’ covenants is rejected by the Tribunal. The freestanding plastic box does not come within such a category and in any event we heard that landlord’s consent had been given.[84]A QLTA is a contract placed with a third party that extend beyond a twelve month period. Failure to consult lessees would result in a maximum of £100 per annum being recovered through the service charge. The only contract referred to here is that with the electricity supply company which does not exceed the 12 month period. No breach has been proved.[85]In any lessee owned company there will be a crossover between duties conducted by the company and those by the managing agent. This is usually to ensure a prompt response to issues raised by lessees. The Tribunal does not find the circumstances described as breaching the terms of the lease in any way.[86]Regarding compliance with the RICS code the Tribunal notes that on page 7 it states that “Although members are not required to follow the recommendations contained in the guidance note, they should take into account” that “a court or tribunal may take account of the contents “[87]Section 1.2 states “…all requirements are for the managing agent, acting on behalf of a client,….”[88]Section 2 sets out the requirements to be observed in dealings between agent and client i.e. between Charters and Trotsworth Court Association Limited.[89]Section 3 as the heading suggests refers to the terms to be greed between agent and client.[90]The reference at 3.7 indicates that Managing Agents may in addition to its core duties provide company secretarial services should the client wish.[91]Section 4 covers general standards and guidance at 4.3 advising that agents should be aware of GDR requirements. 19[92]As such the Tribunal finds that on the evidence presented neither the existing managing agent or the Respondent has failed to abide by the RICS code in respect of its management of the estate.[93]Given that the Tribunal, with the exception of access to Gorse Hill Lane, has not found that either the landlord’s obligations under the lease or the RICS management code have been breached it does not find it “just and convenient” to appoint a manager under S.24 of the Landlord and Tenant Act 1987 and the Application is therefore refused.[94]The Tribunal adds that even if some breaches had been found, some 65 objections to the application/support for the Respondent Company have been received and given this level of satisfaction any incoming tribunal appointed manager would be most unlikely to succeed.[95]The Tribunal thanks Ms Gillingwater for her attendance and the open and straightforward manner in which she put forward her proposals. Costs applications and reimbursement of Tribunal fees[96]The Tribunal’s directions of 31 July 2023 indicated that cost applications would be heard at the end of the hearing. This did not however take place and further directions are now made seeking the parties representations.[97]The Applicant set out his reasons in his application dated 3 July 2023, however, given that time has passed the Tribunal wishes to give the Applicant the opportunity of expanding on these reasons should he so wish and for the Respondent to reply. Directions[98]The Applicant will send any further submissions in respect of the cost application only to the Respondent and electronically to the Tribunal within 14 days of the date of this determination.[99]The Respondent will send a reply to the Applicant and electronically to the Tribunal withing 28 days of the date of this determination.[100]The Tribunal will determine any costs applications on the papers and provide a supplemental decision in writing as soon as practicable thereafter. 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 20 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. NOTE The time limits referred to above are from the date the decision on costs is sent to the Tribunal.