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A round-up from the UT(LC)

By J

The Upper Tribunal (Lands Chamber) has been rather busy recently, handing down four housing-law related decisions in the last fortnight or so. The first three are service charge disputes, whilst the fourth is a lease variation case.

In Tunstill v Primrose Mansions Ltd [2011] UKUT 288 (LC), the issue was the extent to which the appellant was liable to pay towards the costs of a porterage service. The property had, in effect, a day porter, who was on-site during the day, and a night porter who was on-call. The relevant covenant provided the landlord with a power to “employ during normal working hours such servant or servants as” are necessary, with the leaseholders paying service charges for the same. The recoverable service charges were accordingly limited to “normal working hours”, i.e. the day porter (at most).

In Rette-Grover v Needleman and another [2011] UKUT 283 (LC), the Upper Tribunal considered the extent to which a lease obliged a lessee to pay towards the costs of preparing and certifying accounts. There was a contractual provision for a management fee and a general “sweeper-up” clause. The appellants contended that the management fee should cover the accountancy costs. The Upper Tribunal agreed. There was one fee for all management tasks.

Finally (amongst the service charge cases), we have Redrow Homes (Midlands) Ltd and others v Hothi and others [2011] UKUT 268 (LC). The leases provided for two “on account” payments, followed by an end-of-year balancing charge, after a certified account being provided. It appears that there was a substantial delay in producing the certified account. The LVT held that there was an implied term that this would b done within a reasonable time and that breach of this implied term rendered the entire service charge demand (both on account and balancing) invalid. It is to be noted that neither the 2007 nor 2008 certificates had been provided at the time of the LVT hearing in 2009.

The Upper Tribunal agreed that there was an implied term that the certificate should be provided within a reasonable period and that the landlord was in breach. The LVT was, however, wrong to say that breach rendered the service charges no-longer payable. The remedies potentially open to the tenants were: (i) an action for damages; (ii) an action for specific performance or for an account; or, (iii) an application to the LVT under the Landlord and Tenant Act 1985 for the determination of the service charges payable. The case would be remitted for the LVT to carry out (iii).

The Upper Tribunal (Lands Chamber) also expressed some disquiet with how the LVT had dealt with the application for permission to appeal. It had, in effect, given additional reasons (none of which had been argued before the LVT) why it was correct and would have reached the same conclusion. Not only was this rarely to be considered an appropriate course of action, but the LVTs additional reasons were simply wrong.

Changing tack slightly, we then come on to Cleary and others v Lakeside Investments Ltd [2011] UKUT 264 (LC), an application to vary various leases under s.35(2)(3), Landlord and Tenant Act 1987. In short, in a block of six flats, two were obliged to contribute to the costs of the management and four were not. The LVT allowed the variation and the leaseholders appealed to the Upper Tribunal, taking two points.

Firstly, the application to vary had not been sent to them by the landlord, but by the LVT; this was said to be important because regs 4 and 5 of the LVT Procedure Regulations 2003 required the landlord to send the application to the leaseholders. The Upper Tribunal had little sympathy with this argument; all relevant materials had been sent to all parties well in advance of the hearing and there was no prejudice suffered.

The second argument was more successful. In order to vary a lease under s.35(2)(e), the LVT had to be satisfied that the current arrangement was “unsatisfactory”. It had given no reasons why this was so. The reality was that there was nothing unsatisfactory about this arrangement; it was simply a reflection of the fact that there were different contractual arrangements in place for different flats. It followed that the appeal was allowed and the application to vary dismissed.

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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