41A Chester Road LON/00AG/LSC/2020/0272
DECISION
[24]Taking each of the costs in issue in turn dealing with the minor items first: Repairs and maintenance[25]These costs were originally challenged for each of the relevant years. At the hearing the repairs and maintenance charges of £250 per annum were no longer in issue for 2017-2020. The charge for 2020 - 21 was a nil charge. Switch room maintenance[26]The Tribunal considers these cost to be reasonable and payable for each of the years claimed. Damp proof repairs[27]These were charged for 2018 - 19 and are considered to be reasonable and payable. Major works[28]The Tribunal determines that it would not be reasonable for the Respondent to recover any of the costs alleged to be due for the windows constituent of the major works excepting the communal window.[29]The way in which the Respondents conducted themselves over the major works was in the Tribunal's opinion below the standard one would expect from a local authority which has some experience of dealing with leasehold management. The Applicant was allowed by the Respondents to carry out repairs and improvements to her property some of which at least should have been carried out by the local authority itself. Notwithstanding this she was now asked to pay the cost of undoing her own work. The Tribunal finds on the facts that the work carried out by the Applicant were of a good standard and improved the exterior of the premises whilst maintaining the aesthetic look of casement windows at the front of the property. The Applicant fitted her own double-glazed windows at the rear which was a very practical approach to take. Meanwhile the Respondents effectively stood by and allowed the Applicant to carry out these extensive works without objection and without indicating that they may require the casement windows to be removed and replaced with double glazing at some date in the future. Notwithstanding the fact that they had allowed the Applicant to carry out the works without any qualification the Respondents later decided it was appropriate to remove the windows that the Applicant had repaired at the front of the building and replace them with double glazed windows. The Tribunal was provided with no proper explanation as to why this was done. The windows of the Applicant’s premises were in reasonable condition and did not need to be replaced. Mr Monaghan was candid about the fact that the windows could have been left in situ. It is remarkable that they were not. Instead of being flexible on the matter the Respondents dogmatically and robustly ignored protests from the Applicant and in effect forcefully replaced the windows in her home. They are now seeking to recover the costs of that work. They also seeking to recover the cost of replacing other windows in the building.[30]There is no provision in the lease which allows the replacement of windows when they are not in disrepair. The sums claimed for replacement of the windows of Flat A are not therefore recoverable and even if they were the Tribunal would find them entirely unreasonable for the reasons already given.[31]In relation to the replacement of the windows in Flat B it was clear from the evidence from Mr Monaghan that no major works had been carried out to the premises since 2001. It is therefore unsurprising that significant works would be required. The former occupiers of Flat B were not in the same position as the Applicant in being able to carry out their own repairs. Works of the type carried out should have been done by the Respondents at a much earlier date. Instead of doing this they waited until the upper floor was in very poor condition and then carried out works including replacing the windows with double glazed units.[32]The replacement of casement windows with double glazed windows is in the Tribunal's assessment within the remit of the repairing clause in the lease. The tribunal particularly takes into account the cases of Ninja Properties Ltd v Cousins Property Group plc [1998] 2 EGLR 52 and Wandsworth LBC v Griffin [2002] EGLR 105 the latter being particularly pertinent because it concerned the replacement of single glazed metal frame windows with UPVC double glazed windows which was held to be within the ambit of the landlord’s covenant to repair and maintain the exterior.[33]Notwithstanding the fact that the sums may be payable by the Applicant under the lease the Tribunal considers that it was not reasonable in all the circumstances for the Respondents to seek a contribution from the Applicant for the windows to Flat B. However, a communal window was replaced and Ms Disney should contribute to that cost, which she accepted.[34]It is difficult to underestimate the stress that must have been caused to the Applicant as a result of the conduct of the Respondents. She hit a wall of bureaucracy which was deaf to her protests. She has now been left with a flat which she considers to be inferior to the one that she had created for herself. In most cases where the landlord conducts itself reasonably the Tribunal would not challenge decisions made with the aim of preserving the life of the building. In the present case there was no reasonable basis for the Respondents taking the action they did. Why replace windows with other windows when the original windows are in reasonable condition and the leaseholder does not want that replacement?.[35]Although it could be said that the Applicant should be required to contribute to repair works to the other parts of the building the Tribunal is entitled to take into account the circumstances of the case in deciding that they are not entitled to recover for the window replacement. The Applicant had already incurred significant costs in carrying out the works to her flat including installing double glazing at the rear. By doing this she had already made a contribution to extending the life of the building. The Respondents were aware of this when they carried out the major works yet they failed to properly reflect it when deciding how to apportion the cost of replacing the windows to Flat B. It was open to them to apportion the cost in a fair way under clause 4.3 of the lease. It is the view of the Tribunal that it was not reasonable to simply apportion the cost via the rateable value method effectively ignoring the fact that the Applicant had already contributed to the overall cost by carrying out her own improvements which were of benefit to the building as a whole. The cost should have been apportioned on the basis that the Applicant was not required to contribute to the window works although she was still required to contribute to other works in the building. The Respondent’s counsel submitted that this case was analogous with the situation of a ground floor flat contributing to lift repairs even though they don’t use the lift. The difference here is the added ingredient of the works carried out by the Applicant. They were part of the factual matrix which the Respondents should have considered when deciding on the fairest means of apportionment.[36]The Court of Appeal decision in Williams and others v Aviva Investors Ground Rent Ltd and another [2021]1WLR 2061 was not cited to the Tribunal by the Respondent’s counsel. This is surprising as it was patently relevant to the decision at hand. In that case the Court of Appeal decided that when faced with alternative apportionment formulations including a formulation allowing the landlord to depart from a fixed apportionment and use instead a different apportionment (acting fairly and reasonably) the FTT steps into the shoes of the landlord in making the decision. This is in order to give effect to s 27A(6) Landlord and Tenant Act 1085. Accordingly in the present case the Tribunal, acting fairly and reasonably is entitled to apportion the costs as indicated in the previous paragraph.[37]The FTT therefore adjusts Ms Disney’s Total Final Contribution of £18,092.57 by a reduction of £7,591.29 (total share of window works £8,059.13 net of £467.84 for her share of the communal window). Accordingly, having amended her apportionment the Applicant is liable for £10,501.28 for the Major Works.[38]The Tribunal hopes that the Respondents will reflect on this determination and consider carefully the way in which they manage their leasehold properties, particularly those like the premises which are street properties and not on estates. It is important that such properties are managed with the same care and attention as other parts of the Respondents’ portfolio. It is not acceptable for these individual properties to be left outlying. They may be regarded as something of a hindrance for the Respondents but the leaseholders occupying them are entitled to a level of service which is equivalent to other leaseholders on larger estates. Moreover, it is important that the Respondents recognise that they as social landlords have responsibilities towards their leaseholders as well as their tenants. Some flexibility may be required. Policies that may work for larger estates for instance in relation to the replacement of single glazed windows with double glazed windows may not be suitable for individual properties. Judge Shepherd 16th November 2021 ANNEX - RIGHTS OF APPEAL Appealing against the tribunal’s decisions[1]A written application for permission must be made to the First-tier Tribunal at the Regional tribunal office which has been dealing with the case.[2]The application for permission to appeal must arrive at the Regional tribunal office within 28 days after the date this decision is sent to the parties.[3]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.[4]The application for permission to appeal must state the grounds of appeal, and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers[5]Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.