By J
06/10/2011

It’s like waiting for a bus

The Upper Tribunal (Lands Chamber) appears to have had a sudden burst of efficiency, churning out judgments at over one a week. It wasn’t that long ago that I can remember one a month being considered an efficient turn over. The reason, it appears, is that more judges have been appointed (hurrah!). So, without further ado, we come first to Church Commissioners v Derdabi [2011] UKUT 380 (LC).

The appellants were the freeholders of a property in London and the respondent was their long leaseholder. In June 2010, the appellants issued proceedings in the county court in respect of unpaid service charges from 2007-2010. The respondent defended the proceedings on the basis that she had “not [been] given a  service waranting… money…” The proceedings were transferred to the LVT, which gave directions requiring a detailed statement of case.

The appellant did not do this, but merely elected to adopt the Particulars of Claim. That, of course, just set out the sums claimed and does not seem to have been that helpful in clarifying the issues between the parties. The respondent did, however, comply with the LVT directions and produced a detailed statement setting out her objections, together with examples of specific failings. The appellant produced evidence in response but it didn’t really deal with the points taken by the respondent.

The LVT determined that most of the individual items of service charge were reasonable, but that there had been generally poor management, such that the fees should be reduced for some of the years in question. The LVT accepted that the respondent had been entitled to complain about the poor quality of management and, in turn, made an order under s.20C, Landlord and Tenant Act 1985. This, as you know, prevents landlords from recovering legal costs via the service charge.

The Church Commissioners appealed against the s.20C order. The appeal was dismissed. Although the total value of the savings obtained by the respondent was quite small (at c.8% of the sums in dispute), that did not mean that a s.20C order should be refused. The thrust of the complaint was that there had been poor management and she had succeeded on that basis. In any event, even if one did look at the percentage value of the reductions, 8% was only correct when set against the entire service charge. The respondent had, in fact, obtained a 42% reduction on the management fees. The respondent had conducted her case in a fair and straight forward way. The LVT had reached a decision which was within the range of decisions lawfully and properly open to it.

That, I must say, seems right to me. I’m not quite sure what the Commissioners thought they were doing with this appeal. Whilst the LVT could have reached a different conclusion, it was always going to be difficult to show that the decision was totally outside the range of lawful decisions. The “right” case in which to bring a s.20C appeal is where there is a lessee-owned/controlled freeholder/manager, who will (in effect) go to the wall unless costs can be recovered. Then the UT(LC) would, I suspect, take a more generous approach.

The second case is Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 39 (LC), in which the UT(LC) appears to be saying that an earlier decision of its (Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393 (LC)), was wrongly decided. The case turns on ss 80 and 81, CLRA 2002 and the Right to Manage. Section 81 sets out the contents of a claim notice (e.g. name and address of the premises, details of the leases, such other requirements as may be prescribed, as to which, see Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010/825). Those requirements can easily get messed up, so s.81(1) provides that the claim notice is not invalidated by any inaccuracies in the “particulars” required by s.80.

Now, things get really complicated. Only s.80(4) (details of the leases) and s.80(8) (other information as may be prescribed) are described in s.80 as “particulars”. So, in Moskovitz, the President of the Upper Tribunal (Lands Chamber) had held that the saving provisions related only to those requirements.

HHJ Walden-Smith QC disagreed. In her view, the saving provision applies to any of the requirements in s.80, not just those requirements expressly described as “particulars”. In the present case, however, that was of no use. The failing in the present case was that the incorrect address had been given for the registered office of the RTM company. It wasn’t just a typo, but an entirely different property in a different part of London. By s.80(5), the claim notice was required to state the “… registered office of the RTM company.” This had not been done. It was not a mere inaccuracy (such as a typo) but a complete failure to provide the necessary information. Accordingly, the claim notice was invalid and the RTM company could not acquire the RTM.

This, I think, is also to be welcomed. The broad approach to the saving provisions is consistent with the similarly broad provisions and interpretation given to similar provisions under the Leasehold Reform, Housing and Urban Development Act 1993 (see Cadogan v Morris (1999) 31 HLR 732) and, insofar as possible, it is clearly desirable for the 1993 Act and the 2002 Act to be consistent (given that the 2002 Act owes much to the drafting of the 1993 Act).

 

 

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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