Flats 2-8 & Two Commercial Units, 309-311 New Kings Road, London SW6 4RF LON/00AN/LSC/2021/0016
DECISION
[24]These disputed items can be dealt with in short order: Restaurant repairs[25]The sum of £2750 is allowed for these repairs. This sum is limited to £250 per unit because no section 20 notice was served. Repairs to flats 3 and 5[26]The sum of 2750 is allowed for these repairs. The sum is limited to £250 per unit because no section 20 notice was served. Managing agents’ specific fees[27]The sums of £6000 and £2016 are disallowed. It would not be fair for the leaseholders to bear the cost of wasted fees which resulted from a dispute between the managing agents and the freeholder. Insurance costs[28]The tribunal were provided with no comparables and the leaseholders failed to satisfy the tribunal that the insurance costs were excessive accordingly these charges are payable in full. Management fees[29]Again, the tribunal were provided with no comparables and the leaseholders failed to satisfy the tribunal that these costs were excessive, accordingly the management charges are payable in full The reserve fund[30]The tribunal regrets that a decision has been made to abandon the reserve fund as generally a reserve fund is a sensible and prudent mechanism for managing unforeseen expenditure. It would be better in the Tribunal's opinion if the lease was modified to allow for a reserve fund. The determination of the tribunal in regard to the reserve fund is limited save that the tribunal determines that the use of reserve fund monies to cover the arrears of service charge owed by the restaurant unit is not an acceptable practice. Late major works challenge[31]The leaseholders raised an issue of flat roof costs and whether they were reasonable. The tribunal were not provided with sufficient information in order to determine this challenge. The payability of prospective service charges[32]The leaseholders sought to argue that there was no ability under the lease to recover costs which had not already been incurred. The tribunal viewed this as a general challenge which did not form part of the specific challenges made by the leaseholders in the Scott schedule. The tribunal is unwilling to make a determination with regard to this question. Any decision made by the tribunal about the service charges and whether prospective charges are due would be a significant decision particularly in relation to previously recovered sums. The tribunal considers that if the leaseholders want this challenge to be dealt with they would need to make a separate application enabling both sides to obtain legal advice in relation to the interpretation of the lease. Section 20 C Landlord and Tenant Act 1985[33]As Mr Wallis carried out the work himself and represented the freeholder at the tribunal it seems unlikely that he will seek to recover any costs under the lease. If however he did seek to recover any costs the tribunal considers that on balance the leaseholders have been successful therefore it is appropriate to make an order pursuant to section 20 C to the effect that the freeholder is prevented from recovering any costs incurred in the tribunal hearing including the preparation costs for the tribunal under the service charge. Judge Shepherd 21/9/21 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. 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. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).