SOUTHERN LAND SECURITIES LIMITEDApplicantTHE LEASEHOLDERS AS IDENTIFIED IN THE SCHEDULE ATTACHED TO THE APPLICATIONRespondent
Before
Judge ShawTogether Property Management for the ApplicantApplication for dispensation from for the RespondentVenue 10 Alfred Place, London WC1E 7LRDate 18 July 2022Property: N22 8JN SOUTHERN LAND SECURITIESType of application: consultation requirements Section 20ZA Landlord and Tenant Act 1985
DECISION
[1](1) The requirements of section 20 of the Landlord and Tenant Act 1985 are hereby dispensed with, in respect of the roof repair works specified in the Application and referred to below[2](2) In granting dispensation in respect of the works, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable.
REASONS
[1]The Applicant seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (‘the Act’), for dispensation from the requirements to consult in advance of qualifying works as set out in section 20 of the Act. Procedural History[2]This has been a remote determination on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because all the issues could be determined on the papers provided.[3]The documents that the Tribunal were referred to were provided in a bundle comprised of 62 pages. References to the bundle appear in bold square brackets below, e.g. [1].[4]This is a “retrospective” application, since, by the date of the application the works had already been completed. Directions were given on 26th May 2022 [39-43].[5]Leaseholders had until 23rd June 2022 to provide any notification to the Tribunal that they opposed the application, and to provide to the Applicant their written reasons.[6]No leaseholders have responded to the Tribunal, and no responses or objections have been notified by the Applicant to the Tribunal. Brief Facts[7]The property is a 3 storey residential mid-terrace house conversion, with flats on the Ground, First and Second floors. The occupier of Flat C notified the managing agents on 3rd October 2021 of water leakage from the roof, penetrating into the flat. A quotation for the necessary repairs was obtained on 7th October 2022, Notice by email was given to the other owner/occupiers in the house on 14th October advising of the nature and cost of the work. No objections were received from any of the owner/occupiers, and none have been received but the Tribunal in the context of this application. The repair work was carried out in late October 2021. The cost was £2,950 plus VAT.[8]The Applicant seeks retrospective dispensation from the consultation requirements in respect of works to replace various of the flashings on the roof, and other associated work, carried out by Hamilton Roofing Limited – pages [45-47][9]The works are said to have been urgent, because water was percolating into Flat C, and the damage and loss would have escalated, had the full consultation process been undertaken The Law[10]Section 20ZA of the Act states that the Tribunal may determine that there should be dispensation from the consultation requirements set out in section 20 of the Act in respect of any qualifying works or qualifying long term agreement when ‘it is satisfied it is reasonable to do so’.[11]In Daejan Investments Ltd v Benson [2013] UKSC 14, the Supreme Court set out the following factors to be taken into account: a) The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA (1) is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements. b) The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor. c) Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements. d) The Tribunal has power to grant a dispensation as it thinks fit, including on terms, provided that any terms are appropriate. e) The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s application under section 20ZA (1). f) The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants. g) The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant. h) The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice. i) Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. Decision[12]There has been no objection or other representation received by any leaseholder. There has therefore been no assertion of relevant prejudice.[13]In light of the facts, the Tribunal considers it reasonable retrospectively to dispense with the section 20 requirements in respect of the works carried out concerning the repair of the roof as stipulated above.[14]In so determining, the Tribunal makes no decision on any question of the payability or reasonableness of the quantum of costs to be recharged to leaseholders through the service charge. Name: Judge Shaw Date: 18th July 2022 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).