“1. The Lessee’s Proportion means .75% per centum or such other percentage as the Lessor shall in the interests of good estate management deem to represent a fair proportion of the Maintenance Expenses attributable to the matters mentioned in the Fifth Schedule hereto PROVIDED ALWAYS as follows … 2. An Account of the Maintenance Expenses (distinguishing between actual expenditure and reserve for future expenditure) for the period ending the 24th day of March for each year during the term shall be prepared and the Lessor shall within three months of the date of each Account serve on the Lessee a copy thereof and of the said Certificate 3. The Lessee shall pay to the Lessor by way of further and additional rent the Lessees proportion of the Maintenance Expenses in manner following that is to say:- 3.1 In advance on the 29th day of September and 25th day of March in every year through the term one half of the Lessees Proportion of the amount estimated by the Lessor or its managing or other agents as the Maintenance Expenses for the year ending on the next 24th day of March the first payment to be apportioned (if necessary) from the date hereof 3.2 within 21 days after the service on the Lessee of the copy of the Account and Certificate referred to in paragraph 2 of this Schedule for the period in question the Lessee shall pay to the Lessor or its managing agents [or] be entitled to receive or be credited with the balance by which the Lessee’s proportion respectively exceeds or falls short of the total sums paid by the Lessee to the Lessor pursuant to paragraph 3.1 of this schedule during the said period”
“a. how should the lease be interpreted (in terms of whether the leaseholder is to pay a proportion of expenditure on Block E only or on the whole estate); b. apportionment; c. impact of theCommonhold and Leasehold Reform Act 2002 (“the 2002 Act”); d. were service charges for some years agreed or admitted, so that the Tribunal has no jurisdiction to consider them?; e. what service charges were reasonably incurred; f. the impact of statutory controls in theLandlord and Tenant Act 1985 (“the Act”); g. set-off for breach of repairing covenants; h. costs.”
“106. Our conclusion on this issue is that by virtue of payments without protest or qualification if the service charges demanded in the years 2012/13 to 2015/16 (so up to25 March 2016 ) the Applicants are deemed to have agree or admitted the service charges for those years, and in consequence the [FTT] has no jurisdiction to consider those service charge years.”
“the Second and Third Applicant are estopped from alleging that the accounts and service charges due from the Second and Third Applicants for service charge years 2012/13 to 2015/16 inclusive were prepared on an incorrect basis, in so far as they are prepared on the basis that all lessees at Kenilworth Court share the service charge for all blocks.”
“14. Before considering the facts of this case, it is necessary to consider the meaning and effect of section 27A(5). An agreement or admission may be express, or implied or inferred from the facts and circumstances. In either situation the agreement or admission must be clear, the finding being based upon the objectively ascertained intention of the tenant which may be express or implied or inferred from the conduct of the tenant – usually an act or a series of acts or inaction in the face of specific circumstances or even mere inaction over a long period of time or a combination of the two. 15. Absent sub-section (5) and depending upon the facts and circumstances, it would be open to the F-tT to imply or infer from the fact of a single payment of a specific sum demanded that the tenant had agreed or admitted that the amount claimed and paid was the amount properly payable, a fortiori where there is a series of payments made without challenge or protest. Part of the reason for this is that people generally do not pay money without protest unless they accept that that which is demanded is properly due and owing, and certainly not regularly over a period of time. Whilst it would generally be inappropriate to make such an implication or inference from a single payment because it could not be said that the conduct of the tenant was sufficiently clear, where there have been repeated payments over a period of time of sums demanded, there may come a time when such an implication or inference is irresistible. 16. Taking matters one step further, it would be open to the F-tT to make such a finding even where there had been no payment at all but there were other facts and circumstances clearly indicating that the tenant had agreed or admitted the amounts claimed. What is required is some conduct which gives rise to the clear implication or inference that that which is demanded is agreed or admitted by the tenant. The relevant question, therefore, is: are there any facts or circumstances from which it can properly be inferred or implied that the tenant has agreed or admitted the amount of service charge which is now claimed against him? 17. The effect of sub-section (5), however, is to preclude any such finding “by reason only of [the tenant] having made any payment” (italics supplied). The reference to the making of “any payment”, and “only” such payment, indicates that whilst the making of a single payment on its own, or without more, will never be sufficient to found the finding of agreement or admission, the making of multiple payments even of different amounts necessarily over a period of time (because that is how service charges work) may suffice. Putting it another way, the making of a single payment on its own, or without more, will never be sufficient; there must always be other circumstances from which agreement or admission can be implied or inferred. And those circumstances may be a series of unqualified payments over a period of time which, depending upon the circumstances, could be quite short, it always being a question of fact and degree in every case. 18. Looking at the reasoning behind this provision, no doubt the reason why the making of a single payment on its own, or without more, would never suffice is that such will often be insufficiently clear but also, in the peculiar area of landlord and tenant, it is common enough for tenants to pay (even expressly disputed) service charges so as to avoid the risk of forfeiture and preserve their home and the value of their lease. But the reason why a series of unqualified payments may, depending on the circumstances, suffice is because the natural implication or inference from a series of unqualified payments of demanded service charges is that the tenant agrees or admits that which is being demanded. Putting it another way, it would offend commonsense for a tenant who without qualification or protest has been paying a series of demanded service charges over a period of time to be able to turn around and deny that he has ever agreed or admitted to that which he has previously paid without qualification or protest. Self-evidently, the longer the period over which payments have been made the more readily the court or tribunal will be to hold that the tenant has agreed or admitted that which has been demanded and paid. It is the absence of protest or qualification which provides the additional evidence from which agreement or admission can be implied or inferred.”
“25. The question is whether there are any facts and circumstances from which the F-tT could properly have found that the appellant had agreed or admitted the service charge items in respect of the 2001/02 to 2006/07 period he now seeks to challenge. In my judgment, the F-tT was entitled to so find based purely upon the series of payment in respect of the demanded service charge throughout this six year period, and subsequently, without reservation, qualification or other challenge or protest. That of itself is sufficient. The is, however, reinforced by the sheer length of time which has elapsed before challenge was first made – between eight years in respect of the 2006/07 service charge and 12 years for the 2001/02 service charge. Whilst distinctions can be made between the nature of the different service charge items being challenged, the F-tT is entitled to look at matters in the round and find that where there has been substantial delay in making any challenges to the items now in dispute, and most if not all of which have long-since been paid, that the tenant has agreed or admitted the amounts claimed which, after all, have long-since lain dormant without challenge.”
“the F-tT was entitled to [find agreement] based purely upon the series of payment in respect of the demanded service charge throughout this six year period, and subsequently, without reservation, qualification or other challenge or protest. That of itself is sufficient.”
“It is said that by attending meetings at which challenges could be raised, and otherwise failing to raise any challenge to the service charges demanded from their purchase and occupation in 2004 until late in 2016, and paying the service charges without qualification or protest, the Second and Third Applicants should be considered to have agreed or admitted the charges were payable.”
“… every year for around 12 years, two interim demands were made, each of which was paid without protest or qualification. It seems to us that these payments meet the test Judge Gerald set out in Cain, namely that they evidence an acceptance /agreement that the payments were due, even though the Applicants did not know everything they wished, later, to know about the rationale for and calculation of the payments. 103. In is clear to us that though there were some things the Second and Third Applicants did not know when making payment, there was a great deal they did know. As we found above, they knew how the leases were set up; they knew how much was spent in each year on Kenilworth Court from the accounts; they knew that the accounts were for the whole of the Estate; they knew how much they were being asked to pay by way of interim charge; they knew they were entitled to information about the outturn for the year, and that they did not receive it. In our view, that was adequate information for them to assess whether they wished to pay what was demanded.”
“This case concerns a challenge to service charges levied upon the Applicants for service charge years 2012/13, 2013/14, 2014/15, 2015/16/ 2016/17, 2017/18, 2018/19, and 2019/20”
“is based on the fact that the accounting arrangements for Kenilworth Court, namely that accounting is on an estate wide basis, have been in place for a very long time without objection.”
“The Respondent adopts a fairly narrow formulation. As it is the party alleging the estoppel, we adopt its formulation. It is that “the strict terms of the lease applied and were not affected by the exercise of the right to manage by the individual blocks in 2006 and 2007.”
“139 … in our view it would be unconscionable to put the Respondent into an uncertain and potentially chaotic position, as would be the case if the Applicants were permitted to require the accounts for 2012/13 to 2015/16 to be assessed on the true basis now. 140. Our decision is that the Second and Third Applicant are estopped from alleging that the accounts and service charges due from the Second and Third Applicants for service charge years 2012/13 to 2015/16 inclusive were prepared on an incorrect basis, in so far as they are prepared on the basis that all lessees at Kenilworth Court share the service charge costs for all blocks.”
“… it was just never an issue. We never talked about it because we just thought it was the right thing to do. I didn’t raise the subject with anyone about how the estate should be managed. You know, it’s just how it was. It had always been managed that way. … it never entered anyone’s head to discuss how the estate should be managed. It just carried on as before and before I was involved.”