Various blocks on the Dulwich Estate LON/00BE/LSC/2020/0296
DECISION
[31]The Tribunal was impressed by all of the arguments in the case and the level of detail in the submissions on both sides.[32]The Tribunal intends to address the questions asked by the Applicants in their application: Question 1 Whether the lifts are not clean, not in good condition, not lighted and/or painted, and/or not in complete repair so that in principal the cost of remedy would fall to be recovered through the service charge?[33]This question reflects the lease term relied upon by the Applicants. The expert evidence was very clear in this case, particularly the evidence of Mr Chambers who the tribunal found to be a very impressive witness. The lessees did not seek to rely on any expert evidence themselves. As well as the expert evidence of Mr Chambers the tribunal had clear and cogent factual evidence of the lifts being defective for long periods of time, incidents of fire, entrapment etc. In summary it was patently clear that all of the lifts within the applications were in disrepair and therefore the lease clause was engaged for each of the applications. Question 2 Whether the works are works whose cost could as a matter of construction of the flat leases be recovered through the service charge ?[34]The Tribunal was satisfied again by the evidence of Mr Chambers that refurbishment works were appropriate in this case. This was not an improvement. Several key elements of the lifts were being retained including the guiderails and the counter - weight. This was sufficient to mean that this could be classed as a refurbishment and that the works required could came within the lease clause. The clause itself is wide in the sense that it requires the lift to be kept in complete repair. This goes beyond simple repair and repair in any event as indicated by Mr. Hammond is a flexible concept. In the present case it is difficult to envisage how the lifts could be kept in complete repair without either being refurbished or replaced. In the present case the Tribunal is satisfied that the refurbishment is necessary in order to ensure that the lifts are in complete repair. It could of course be possible to continue to patch repair the lifts as has been done for a number of years. However, the lifts are 60 years old. There is a limit to which one can continue to patch repair technical equipment like lift motors etc. The lifts in the present case in all of the blocks are well beyond their originally envisaged life. It is necessary in order to ensure that the lifts are in complete repair to carry out the refurbishment proposed. Question 3 Whether it's reasonable to undertake the works and hence whether it's reasonable to incur the costs within the meaning of S19(1) of the act?[35]It has already been decided that the lift works are necessary and therefore the works are also reasonable. Indeed, the works are advisable and it would be remiss of the Applicants not to address the issue when there are so many problems clearly existing within the lifts. Accordingly, the Tribunal has no hesitation in determining that it is reasonable to undertake the work and incur the cost of the work. It is repeated however that this decision is not addressing whether the actual cost of the work is reasonable. That is an issue which the leaseholders may wish to challenge in the future.[35]In summary the Tribunal is satisfied that the lift in all of the blocks on the estate that have not already been refurbished should be refurbished. Section 20 of the landlord and tenant act 1985[36]This was a well fought dispute. As indicated the Tribunal was impressed by the evidence brought forward and the submissions made by each side. It would be unfair to allow the Applicants to recover the cost of the proceedings under the service charge in these circumstances. Accordingly, the Tribunal determines that the section 20 C application is successful and the Applicants should not seek to recover the cost of the proceedings from the service charges of any of the leaseholders on the estate. Judge Shepherd 29 March 2021 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).