Fairlawn House 22 Mount Sion Tunbridge Wells Kent TN1 1US HAV/29UQ/LDC/2024/0642

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No HAV/29UQ/LDC/2024/0642

Between

Fairlawn House Management (Tunbridge Wells) LimitedApplicant

The LeaseholdersRespondent

Before

I R Perry FRICS

Alexandre Boyes for the Applicant

Date 6 January 2025

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 relation to repair works to balcony. The Tribunal has made no determination on whether the costs of the works are reasonable or payable. Background

[2]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 26th November 2024.

[3]The property is described as a block of flats in a converted building.

[4]The Applicant explains that:- The works concern the structure of a balcony where it has been deemed as unsafe and a potential risk to the safety of any person walking below. The works are, therefore, urgent. Urgent structural repairs are required to a balcony at the rear of the property over a walkway and an area of parking. A surveyor has inspected the balcony and deems it a risk to residents’ health and safety as it has the potential of debris/ parts of the structure falling. We propose to instruct a contractor asap to attend so that work can commence. Two quotes were gathered and the lowest priced quote is to be instructed. No consultation has bee (sic) carried out- due to the urgency, our clients have asked that we seek dispensation. Due to the structure of the building being compromised and the risk to the health and safety of cars parked and people walking below, we are keen to get dispensation so as to complete the work as soon as possible.

[5]The Tribunal gave Directions on 2nd December 2024 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.

[6]The Directions 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.

[7]The Applicant’s representative has confirmed by email that all the documents were sent to all leaseholders, and no objections have been received.

[8]The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the works, and whether they are recoverable from the leaseholders as service charges or the possible application or effect of the Building Safety Act 2022. The leaseholders have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges. The Law

[9]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 / to enter into a Long Term Qualifying Agreement being an agreement of 12 months or more with a cost of more than £100 per annum 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.

[10]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.

[11]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

[12]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.

[13]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).

[14]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.

[15]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.

[16]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.

[17]If dispensation is granted, that may be on terms.

[18]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

[19]The Directions attached a reply form for the Respondents to complete to confirm whether they agreed with the application or not and if opposed, to provide a statement setting out why they oppose.

[20]The Applicant’s representative has confirmed that no leaseholder has objected to the application.

[21]Having considered the Application and prior to undertaking this determination, I am satisfied that a determination on the papers remains appropriate, given that the Application remains unchallenged.

[22]The reason why dispensation from consultation requirements is said to be required is that repairs are needed to the balcony at the rear of the property, which is over a walkway and an area of parking, such that there is a potential danger to persons and property of debris/parts of the structure falling. Given the nature of the works and the fact that it relates to the safety and welfare of the building and its occupants, I am satisfied that the qualifying works were of an urgent nature.

[23]There has been no objection to the dispensation of the consultation requirements from any of the Lessees. Two quotes have been obtained and the Applicant states that it intends to instruct a contractor to proceed as soon as possible.

[24]None of the Lessees have therefore asserted that any prejudice has been caused to them. 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.

[25]The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

[26]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 as described in this Decision.

[27]This Decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying works for repair works to balcony structure as outlined at paragraph 4. 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.

[28]In reaching my decision I have taken account of the fact that no party has objected to the application. The leaseholders have had opportunity to raise any objection, and they have not done so. I do however Direct that the dispensation is conditional upon the Applicant or their agent sending a copy of this decision to all the leaseholders so that they are aware of the same. RIGHTS OF APPEAL

[29]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

[29]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.

[30]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.

[31]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.