LVT issues – pre-summer holiday round up

This should – I hope – be the last leasehold property/LVT case round up for a few weeks. But it’s a good one. I promise. Appeals. Service charges. Consultation. Right to Manage. Who needs “50 Shades” when you’ve got case-law to enjoy?

Appeals

Wellcome Trust Ltd v 19-22 Onslow Gardens  Freehold [2012] EWCA Civ 1024 is an important case concerning rights of appeal. It appears that the underlying case was about leasehold enfranchisement. The LVT refused to admit certain evidence. The landlord sought to appeal that decision. The LVT must have refused permission to appeal and so the landlord renewed the application to the UT(LC). The Upper Tribunal then refused permission to appeal and – as per the standard covering letter – informed the landlord that there was no right of appeal against that decision but that, in an exceptional case, the High Court could hear a judicial review application to quash the decision of the UT(LC) to refuse permission to appeal.

The landlord disagreed with the decision that there was no right to appeal against the decision to refuse permission to appeal and, accordingly, sought permission to appeal the original refusal of permission. The UT (LC) held that there was no power to grant permission to appeal against a decision refusing to grant permission to appeal and, in any event, there was no merit in the point.

The argument for the landlord was as follows:

(a) s.175, Commonhold and Leasehold Reform Act 2002 provides for appeals from the LVT to the UT(LC), but the appellant needs permission from either the LVT or UT

(b) ss 11, 13, Tribunals Courts and Enforcement Act 2007 provide for appeals from the UT(LC) to the Court of Appeal; again, permission is needed either from the UT or the CA

(c) any decision of the UT(LC) can be appealed, unless the decision is an “excluded” one (s.13(8));

(d) a decision of the UT(LC) to refuse permission to appeal from the LVT is not listed in the excluded cases;

(e) the excluded cases include decisions on applications for permission to appeal from First Tier Tribunals; but,

(f) the LVT is not a First Tier Tribunal (although it will becomes one in 2013).

Hence, no problem with an appeal! In fairness to the landlord, the President had previously suggested that this might be right in an earlier case of Re: Ascham Homes Ltd LRX/8/2009 (here, our note here).

The tenant objected to this. When the UT(LC) had been the Lands Tribunal (i.e. from 1949-2009) it had been clear that there was no right to appeal a decision refusing permission to appeal: R (Sinclair Investments Kensington Ltd) v Lands Tribunal [2005] EWCA Civ 1305. It was inconceivable that Parliament had intended to change the position. Further, in Lane v Esdaile [1891] AC 210, it had been held that a requirement to obtain permission to appeal impliedly excluded an appeal against a refusal of permission.

The Court of Appeal listed a hearing to decide whether there was jurisdiction for them to consider the case or whether the challenge to the decision of the UT had to proceed by way of judicial review.

The latter approach was taken. No right of appeal against a decision to refuse permission to appeal had existed when the UT(LC) was the Lands Tribunal. There was no reason to presume Parliament intended to create one. The only remedy was, as the UT had said, to challenge the refusal to grant permission to appeal in the High Court on a judicial review case.

Right to Manage

The right to manage is a right for qualifying leaseholders of residential premises to form a company which, in turn, can assume the managment functions of their landlord under their leases. It’s a “no fault” right, but there are some pretty serious procedural requirements. in Assethold Ltd v 14 Stansfield Road RTM Company Ltd [2012] UKUT 262 (LC), the UT had to grapple with the effect of non-compliance.

The appellant, Assethold, was the freehold owner of 14 Stansfield Road. That property had been divided intio flats. The leaseholders formed a company and sought to acquire the right to manage. The landlord took a series of procedural points, all of which were rejected by the LVT. Four points were pursued to the UT

First, it was said that the claim form used by the RTM company was wrong, as it was the form prescribed by the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2003, when it should have been in the form required by the 2010 Regulations of the same name.

The UT was not impressed with this argument. The difference between the two sets of regulations was miniscule and could not possibly lead to any prejudice. In any event, following Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC) (link to our note), the 2002 Act contained a generous and broad saving provision. Comments to the contrary in Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393 (LC) (our note here) were expressly disapproved as wrong.

Secondly, it was said that the claim notice was invalid as it was not signed by a member or  officer of the company. Rather, it had been signed by a third party who was authorised to do so by the company. There was no requirement that the notice be signed by a member or officer, someone with authority of the company was adequate.

Thirdly and fourthly, the RTM company had not proved that it had the requisite number of members nor that it had properly served the claim notice. Both claims were rejected. There was nothing to suggest that there was any such defect. It was not enough to merely assert – as the landlord had done – that these matters needed to be proved. The landlord needed to set out why it was said that there was an issue which the RTM company was required to address.

s.20, Landlord and Tenant Act 1985

Peverel Properties Ltd and another v Hughes and others [2012] UKUT 258 (LC) is going to be quite an important case on s.20, Landlord and Tenant Act 1985 and the consultation provisions thereunder. In outline, unless the landlord consults the tenants in the prescribed manner, then the recoverable service charges are capped at either £250 (works) or £100 (service contracts). The facts are complicated but, in outline, the key point concerns how a landlord should specify a date for the conclusion of the consultation process. For present purposes, it is sufficient explanation to note that, when consulting his tenants, the landlord is obliged to a period of 30 days for responses to be made and specify the date when the consultation period ends. In the present case, the landlord gave 35 days and did not specify a calendar date when the period ended, but merely provided that it would be 35 days from the date of the notice.

The LVT held that was insufficient and that the landlord was required to specify a date. That, said the UT, was wrong. It was perfectly possible to use a formula, so long as the final date is sufficiently clear that it can be ascertained by the tenant, see, by way of comparison, Lower Street Properties v Jones [1996] 2 EGLR 67.

Service charges

In Green v 180  Archway Road Management Co Ltd [2012] UKUT 245 (LC), the lease provided for the landlord to insure the building in the joint names of himself and the leaseholders. The leaseholders would, in the usual way, contribute to the cost of the same via the service charges. In fact, the landlord did insure in joint names, and suggested that the leaseholder was sufficient protected by what was termed a “general interest” clause in the insurance. More accurately, when considering the evidence, it seemed that the leaseholder had been named in some years and not in others.

The UT(LC) held that the leaseholder was only liable to pay for those years when her interest had been directly named on the insurance policy. The lease only obliged her to pay in those circumstances. It was, as it always is, the lease which was the key document.

 

Posted in FLW case note, Housing law - All, Leasehold and shared ownership and tagged , , .

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

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