A couple of things to leave you with on a Friday afternoon.
Leaseholders who are dissatisfied with the management of their properties are entitled to apply to a Leasehold Valuation Tribunal (LVT) for the appointment of a manager – Part 3, Landlord and Tenant Act 1987. The LVT may appoint a manager in a number of prescribed circumstances including, where there has been a failure to comply with the provisions of a relevant Code of Practice – s.24(2)(ac), LTA 1987.
The relevant Codes of Practice are prescribed by the Secretary of State (or the Welsh Assembly) pursuant to s.87, Leasehold Reform, Housing and Urban Development Act 1993.
As of 6 April 2009, there is a new Code for England. The Approval of Code of Management Practice (Residential Management) (Service Charges) (England) Order 2009 SI 2009/512 will mean that the “Service Charge Residential Management Code” (ISBN 085406 6438) will cease to be a prescribed code and will be replaced with the “Service Charge Residential Management Code” (ISBN 9781842191682).
The new code will – we hope – shortly be available for purchase from the Royal Institute of Chartered Surveyors. The fact that something with statutory force has to be purchased is, however, entirely unacceptable.
In Akorita v 36 Gensing Road Ltd LRX/16/2008 (.pdf), the Lands Tribunal considered whether or not the Appellant had been properly served with a notice under s.20 Landlord and Tenant Act 1985.
In 2005, the Respondent freeholder had indicated that it was minded to carry out significant repair works to the building. These works were “qualifying works” within the meaning of s.20 Landlord and Tenant Act 1985, such that, if the Respondent did not adequately consult, then the amount that it could recover by way of service charges was capped at £250 per leaseholder unless the LVT gave dispensation from the consultation requirements.
The Respondent engaged surveyors to prepare the s.20 notice. The notice was sent to the Appellant at Flat 3, 36 Bensing Road. It was known to the Respondent that the Appellant in fact lived in Forest Hill, London and not at Flat 3 (although she was the leasehold owner of the same).
The Appellant contended that she had not been served with the s.20 notice. The LVT found as a fact that the s.20 notice had been sent by post to the Appellant at Flat 3 and that this was service within the meaning of the lease and, hence, good service.
The LVT also found that, in any event, there was a “reasonable chance” that the Appellant had, in fact, received the notice.
The Appellant appealed to the Lands Tribunal.
The appeal was allowed. The flat was not the last known place of abode of the Appellant, nor was it her place of business nor was it an address that she had agreed could be used as a postal address. In any event, the was no evidence that the notice had actually made it to the flat as opposed to being left in the common parts. This was not a technical distinction but a point of substance. There was a real and significant difference between a letter which arrived in the communal areas and one which was actually put through the door of a demised property.
As regards the “puzzling phraseology” that there was a “reasonable chance” that the Appellant had received the s.20 notice, this was a decision reached without considering all the relevant material. It was unclear what a “reasonable chance” actually meant. Something could be less than 50% likely (and, hence, not proved on the balance of probabilities) and yet still have a “reasonable chance” of being true.
In the light of these decisions, the appropriate route was for the Lands Tribunal to redetermine the point. It was therefore found that the Appellant had not received the s.20 notice and the question of dispensation was remitted to the LVT.