Hopefully, you’re either reading this (a) whilst enjoying the long bank-holiday weekend or (b) back in the office after having enjoyed the long weekend. Either way, a case about holiday chalets seemed appropriate at this time.
By s.27A, Landlord and Tenant Act 1985, an application may be made to an LVT to determine, inter alia whether a service charge is payable and in what sum. A service charge is (s.18, 1985 Act) an amount payable by a tenant of a dwelling for services, repairs, maintenance, improvements, insurance or the landlord’s costs of management, the whole or part of which costs vary according to the costs incurred by the landlord in providing the same.
In Phillps v Francis, QBD, March 24, 2010 (Westlaw note, Lawtel transcript), the court was dealing with a dispute between chalet owners and their freeholder. P had a 999 year lease of a holiday chalet on a site owned and managed by F. F sought to recover service charges under the terms of the lease and issued proceedings in the High Court. Two preliminary issues were identified:
(a) could the court deal with a service charge dispute, or were such matters the exclusive preserve of the LVT (a daft preliminary issue; anyone who has even a passing understanding of service charge litigation could tell you that the jurisdiction is concurrent);
(b) whether the chalets were “dwellings”; this is, I accept, a slightly more difficult issue, particularly after the Lands Tribunal held in Udlaw v King  2 EGLR 99, that they were not.
HHJ Griggs, sitting as a deputy High Court Judge held:
(a) that the jurisdiction was concurrent; not only did s.27A(1), 1985 Act provide that an application “may” (not “must”) be made to the LVT, but s.27A(7) 1985 Act made quite clear that the jurisdiction of the LVT was “in addition to any jurisdiction of the court.” Whilst it would be convenient for the majority of cases to be dealt with by the LVT, there was no reason why all such cases had to be.
(b) that the chalets were dwellings. It was true that the terms of the leases prevented the claimants from living at the chalets on a permanent basis and that the President of the Lands Tribunal had, in King v Udlaw, felt this to be a reason why holiday chalets were not dwellings. However, King was not binding on the court; it was no requirement of the 1985 Act that the dwelling be a permanent home; indeed, there was no reason why a person could not have two homes. The policy of the 1985 Act was to protect people against excessive and unreasonable service charge demands. That policy should apply with equal force to a flat in a block and to a holiday home.
Permission to appeal has apparently been granted.