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By J

And here’s to you, HHJ Robinson*

Three decisions of HHJ Robinson, sitting as a judge of the Upper Tribunal (Lands Chamber) for your delectation.

In Masri v The Wellcome Trust Ltd [2010] UKUT 138 (LC)  the respondents had originally demanded c.£19,000 of charges but, after recording a number of concessions by the respondents and determining various remaining items, the charges, the LVT reduced the charges to £1,011.95. The appellant obtained permission to appeal on three points. The first two were closely related – it was said that the LVT should have deduced various further sums which had been conceded, but which had not been taken into account in the final determination; alternatively, reasons should have been given as to why this was not done. The appeal was allowed on this point as it appeared that there had been an arithmetical error (although, quite why this wasn’t dealt with by way of a correction to the orignal decision is unclear).

The third ground of appeal was more difficult; the appellant had sought to raise a counter-claim before the LVT, arising out of an alleged failure to repair a smoke vent. However (a) he hadn’t expressly raised this before the LVT; (b) the counterclaims that he did raise had been dealt with by the LVT and (c) he had, in earlier proceedings in the county court, been debarred from raising this particular counter-claim.

These points were fatal to the appeal, in particular, the LVT would have been entitled to conclude that was an attempt to get round the county court order and dismiss the counter-claim an an abuse. Had the Judge realised the true position, she would not have granted permission to appeal on this point.

In Peverel OM Ltd v (1) Peverel Freeholds Ltd (2) MacKenzie and others [2010] UKUT 137 (LC) the issue was whether the costs of roof works were reasonably incurred for the purposes of s.19(1), Landlord and Tenant Act 1985.

Barratt Homes Ltd had converted a block from offices into flats in c.2000. Long leases were then sold to, inter alia, the second respondents and the freehold to the first respondent. The appellant was the manager under the leases. In c.2002, the roof began to suffer from water penetration and, when minor repairs were ineffective, major works were carried out in 2007. These cost c.£37,000, which the appellant intended to recover from the second respondents.

The second respondents applied to the LVT, arguing that they were not liable to contribute to the costs because the appellants should look to Barratt Homes for the costs; it was their roof and they who should pay. The LVT agreed, finding that the roof had failed because of faulty workmanship or preparation when converting the property and it was a breach of a “duty of care” by the appellant not to pursue Barratt.

The appeal was allowed. There was no evidence that the appellant – which was, after all, only the manager, had any cause of action against Barratt. It was only obliged to maintain the property and had no contractual relationship with Barratt; there was no basis to find that any contractual claim could be maintained. Likewise, a tortious claim failed for similar reasons; there was no relationship between Barratt and the appellant under which Barratt owed a duty of care to provide a sound roof and, even if there was, it was not foreseeable that such a defect would cause loss to the appellant. It would not be fair , just and reasonable (as to which, see Caparo Industries v Dickman [1990] 2 AC 605) to impose a duty on the appellant to sue.

The second respondents contended that the appellant was, in effect, agent for the first respondent and the first respondent could have sued in respect of the roof. HHJ Robinson was dubious; the conversion works were done – and the leases granted – prior to the sale of the freehold the first respondent. The usual rule (caveat emptor, as Lord Woolf wouldn’t say) was that the first respondent took the land as it found it, alleged defects and all.

In City of Westminster v Fleury and others [2010] UKUT 136 (LC), the question was, again, whether the costs of roof repair works were reasonably incurred, within the meaning of s.19(1), Landlord and Tenant Act 1985. The LVT had – agreeing with the leaseholders – found that the cost of various roof repairs was not reasonably incurred because the method of repair – total recovering rather than patch repair – was unreasonable and, hence, the cost too high.

The authority argued that, if a reasonable surveyor could reasonably form the view that the roof needed to be recovered, then it was not open to the LVT to find that pursuing such a course of action was unreasonable. This was not accepted by the Upper Tribunal. The question was whether the particular decision in question as a reasonable one. The fact that a surveyor might have recommended it was important, but not determinative. The weight to be attached to that evidence would depend where in the range of reasonableness the recommendation lies.

On the facts of the case, the surveyor for the respondents had accepted that one could recover the whole roof, but had suggested that this was “at the very far end” of the range of reasonableness. The LVT had agreed with this and, in the light of all the evidence, this was a conclusion that it was open to the LVT to reach.

However, in reaching such a decision, the LVT did appear to have erred in looking at the likely costs involved; it had thought that the cost of patch repair would be considerably cheaper, but the evidence had not necessarily supported such a conclusion. In particular, the past costs were not a reliable guide to future costs. This, together with some other discrepancies in the manner in which the LVT had dealt with the evidence, meant that the matter was therefore remitted for further consideration by the LVT.

*with apologies to Simon and Garfunkel, although I prefer the Lemonheads version.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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