38 Avenue Road London N6 5DW: LON/00AP/LDC/2023/0147 & LON/00AP/LSC/2023/0176 LON/00AP/LDC/2023/0147-AND-LON/00AP/LSC/2023/0176

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00AP/LDC/2023/0147-AND-LON/00AP/LSC/2023/0176

Between

P FrydasApplicant

and Mrs Papakyriacou (Flat 9)Respondent

Before

Pittaway

person for the Applicant

Date 11 December 2023

DECISION

[27]The Tribunal reached its decision after considering the witnesses’ oral and written evidence, including documents referred to in that evidence, and taking into account its assessment of the evidence.

[28]This determination does not refer to every matter raised by the parties, or every document the Tribunal reviewed or took into account in reaching its decision. However, this doesn't imply that any points raised or documents not specifically mentioned were disregarded. If a point or document was referred to in the evidence or submissions that was relevant to a specific issue, it was considered by the Tribunal.

[29]The tribunal has made determinations on the various issues as follows. The application under s20ZA

[30]Section 20ZA(1) of the Act provides: “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.”

[31]The purpose of section 20ZA is to permit dispensation with the consultation requirements of section 20 of the Act if the Tribunal is satisfied that it is reasonable for them to be dispensed with.

[32]In reaching its decision the Tribunal has considered the decision in Daejan Investments Ltd v Benson and others

[2013] UKSC 14

, ( ‘Daejan’) to which it referred the parties at the start of the Hearing. It has also had regard to the application and the documents provided, in particular the stated need for the Works and that the Respondents did not object to the Works themselves or that the cost of the Works was too high.

[33]At paragraph 67 of the decision in Daejan Lord Neuberger referred to a point made by Lord Sumption, ‘if the tenants show that, because of the landlord’s non-compliance with the Requirements, they were unable to make a reasonable point which, if adopted, would have been likely to reduce the costs of the works or to have resulted in some other advantage, the LVT would be likely to proceed on the assumption that the point would have been accepted by the landlord’

[34]The estimates from the three contractors who were not awarded the contract are in the bundle, as is the invoice for the completed work from PK House Renovation Ltd in the sum of £25,800. This sum is less than the estimates of the other three contractors.

[35]Accordingly the Tribunal finds that the landlord’s non-compliance would not have resulted in a reduction in the costs of the Works.

[36]From the evidence it has heard the Tribunal finds that it is not the cost of the works to which the Respondents objected but rather the absence of the type of the guarantee they were requesting. The absence of the guarantee might be an advantage such as referred to in Daejan.

[37]However on the evidence before it the Tribunal finds that the Applicant had regard to the Respondents’ desire for a guarantee, even if he has not provided evidence that it is the type of guarantee they were seeking. There is no evidence before the Tribunal that if the s20 consultation process had been fully undertaken the form of guarantee requested by the Respondents would have been available. Nor have there been any submissions to the Tribunal that a guarantee in the form desired by the Respondents is a requirement under the terms of the lease.

[38]Clause 3(a) (ii) of the Lease requires the landlord to obtain the lessees’ consent (not to be unreasonably withheld or delayed) to works costing more than £500, ‘other than works required as an emergency’. It may be that if the works were not required as an emergency the lessees might have been able to make it a condition of their consent that a guarantee in the form they wished be obtained, but there is no evidence before the Tribunal that such a form of guarantee would have been available. The Respondents have not provided any alternative estimates or evidence that a guarantee such as they were seeking would have been available.

[39]The Tribunal finds that, given that three flats were suffering from damage caused by the leaking roof and the climactic conditions were such that it was likely that the position would deteriorate the works were required as an emergency. In the circumstances of the works being required urgently the Respondents’ consent was not required.

[40]The Tribunal determines that the Respondents are not prejudiced by the Works and it is reasonable to dispense with the consultation requirements. The application under s27A

[41]The Respondents have not challenged their liability to pay for the cost of the Works, nor have they submitted that the cost was unreasonable. Rather they have submitted that they would have paid more to obtain a guarantee in a form acceptable to them.

[42]The Tribunal therefore find the cost of the Works to have been reasonable.

[43]Paragraph 1(i) of the Second Schedule of the Lease requires the Landlord to maintain and keep in good and substantial repair and condition ‘the main structure of the Property including the foundations and the roof thereof with its gutters and rain water pipes and windows and window frames.’ There is no requirement that the Landlord obtain a guarantee for the works. It would appear that the Applicant sought to obtain one here and it has apparently been given by the contractor although the terms of the guarantee are not before the Tribunal.

[44]It is unfortunate that the Applicant has not obtained a copy of the guarantee offered by the contractor. Its absence is not a matter which affects the Tribunal’s decision in this s27A applications but the reasonableness of the cost of future repair to the roof may depend upon the ability of the landlord to provide a copy of the guarantee in the future and to show that it is still enforceable. S20c costs

[45]While not raised at the Hearing the Directions identify that the issues to be determined include whether an order should be made under s20C of the 1985 Act that the costs incurred by the landlord in connection with proceedings before the Tribunal are not to be regarded as relevant costs to be taken into account in determining the amount of service charge payable by a tenant. The landlord was not represented at the hearing and the Tribunal is not aware that he incurred any costs in connection with the proceedings but for the avoidance of doubt the Tribunal determines that it is just and equitable in the circumstances for an order to be made under section 20C of the 1985 Act, so that the Applicant may not pass any of his costs incurred in connection with the proceedings before the Tribunal through the service charge. Fees and interest

[46]The application under s27A of the 1985 Act also asked the Tribunal to refund the costs of making the applications of £400 and interest of £200.

[47]The Tribunal does not order the Respondents to refund the fees paid by the Applicant in respect of the s20ZA application and the Hearing as the Applicant was required to make that application by reason of not having consulted the Respondents before undertaking the Works.

[48]The Tribunal orders the Respondents to refund the fee of £100 paid by the Applicant in respect of the s27A application.

[49]At the hearing the Tribunal explained to the Applicant that it did not have jurisdiction to award the interest that he was seeking Name: Judge Pittaway Date: 11 December 2023 ANNEX - RIGHTS OF APPEAL

[1]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.

[2]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.

[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 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.