2 Hyde Park Square, London W2 2JY LON/00BK/LDC/2021/0069

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00BK/LDC/2021/0069

Between

Two Hyde Park Square Management Company LimitedApplicant

The leaseholders listed in the spreadsheet accompanying the applicationRespondent

Before

Judge Donegan

London Residential Management Company Limited (Managing Agents) for the Applicant

Unrepresented Section 20ZA Landlord and Tenant Act 1985 for the Respondent

Date 14 June 2021

Property: 2JY Two Hyde Park Square

Type of application: Dispensation with consultation requirements

DECISION

This has been a remote hearing 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 it was not practicable, and all issues could be determined on paper. The documents that I was referred to are in a bundle of 151 pages, the contents of which I have noted. Decision of the Tribunal(a) The Tribunal grants retrospective dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘the 1985 Act’) for repairs to the communal air-conditioning/heating system at 2 Hyde Park Square (‘the Property’), as detailed in an invoice from Curaim UK Limited (‘Curaim’) dated 30 November 2020.

(b) No terms are imposed on the grant of dispensation.

(c) The applicant shall send a copy of this decision to each of the respondents, either by email, hand delivery or first-class post and shall send an email to the Tribunal by 28 June 2021, confirming the date(s) when this was done. The application

[1]The applicant seeks retrospective dispensation from the consultation requirements imposed by section 20 of the 1985 Act. The application concerns the repair of the communal air-conditioning/heating system at the Property.

[2]The application was submitted on 15 March 2021 and directions were issued on 24 March 2021. These provided that the case be allocated to the paper track, to be determined upon the basis of written representations. None of the parties has objected to this allocation or requested an oral hearing. The paper determination took place on 14 June 2021.

[3]The relevant legal provisions are set out in the appendix to this decision. The background

[4]The Property is a converted nine-storey building containing 36 flats, all let on long leases. The applicant is the management company named in the leases and the respondents are the leaseholders of the 36 flats. The Property is managed by London Residential Management Company Limited (‘LRM’).

[5]The Property has a communal system that provides air-conditioning and heating to all flats. Unit 3 in this system broke down on 24 November 2020, leaving all flats on the fourth and fifth floor without air-conditioning or heating. LRM arranged an inspection of the system by Curaim who made the following findings and recommendations: “Slave system number 3 was found to be tripped at the braker and on further inspection, the Inverter compressor & Inverter PCB was found to be faulty and requires replacement. These are major repairs and we have left the system electrically isolated pending this repair. The likely reason for this failure will be down to wear and tear as well as the known ventilation problems causing air recirculation and overheating in the warmer months of the year. We understand that these outdoor units are due to be repositioned externally by others in the not too distant future. Until this has been carried out compressor/inverter failures should be expected.”

[6]Curaim also provide a quotation for replacing the compressor and inverter in the sum of £5,185 plus VAT, which exceeds the section 20 consultation threshold for some of the flats at the Property. LRM instructed Curaim to undertake these repairs, which were completed on 30 November 2021. Curaim raised an invoice on this date for the agreed sum of £5,185 plus VAT. The grounds of the application

[7]The grounds were set out in the application form. In brief, the repairs were considered urgent given the lack of heating and air-conditioning on the fourth and fifth floors. Some of the flats are occupied by families with children and LRM was also concerned by the potential risk to those self-isolating.

[8]LRM notified the respondents of the proposed repairs in three separate emails, before the works commenced.

[9]None of the respondents has contested the application. The Tribunal’s decision

[10]The Tribunal grants retrospective dispensation for the repair of the communal air-conditioning/heating system, as detailed in Curaim’s invoice. No terms are imposed on the grant of dispensation. Reasons for the tribunal’s decision

[11]The Tribunal accepts the repairs were urgent, given the lack of heating on the fourth and fifth floors and the time of year. Had LRM undertaken a full section 20 consultation this would have delayed the works by three months or more. LRM acted reasonably in arranging urgent repairs and notifying the respondents of these works.

[12]None of the respondents have contested this application or identified any prejudice that might arise from the grant of dispensation or proposed any terms as a condition of granting dispensation.

[13]Having regard to the particular facts of this case and the guidance in Daejan Investments Limited v Benson

[2013] UKSC 14

, it is reasonable to dispense with the consultation requirements.

[14]This decision does not address the cost of the repairs or whether the respondents are liable to contribute to the cost, via their service charges. Nothing in this decision prevents the respondents from seeking a determination of ‘payability’, pursuant to section 27A of the 1985 Act. Name: Tribunal Judge Donegan Date: 14 June 2021 Rights of appeal

[1]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.

[2]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.

[3]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.

[4]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.

[5]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.

[6]If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). Appendix of relevant legislation Landlord and Tenant Act 1985 (as amended) Section 20(1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal .

(2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement.

(3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount.

(4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount.

(5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations.

(6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount.

(7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined.] Section 20ZA (1) Where an application is made to the appropriate tribunal for a determination to dispense with all of 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. (2) In section 20 and this section – “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months. Section 27A (1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.