Some brief notes on Upper Tribunal and Court of Appeal judgments on leasehold matters.
Aviva Investors Ground Rent GP LTd & Anor v Williams & Ors (2021) EWCA Civ 27
Lease wording on apportionment of service charges to the effect that “your share of the overall charge is X% or such part as the Landlord may otherwise reasonably determine” did not mean that the specified percentage was fixed and that the Tribunal had no power to specify a different percentage.
While the clause did not give the landlord the unilateral ability to vary the apportionment, the wording was not void as the Upper Tribunal had held. It remained open to either the landlord or the lessee to apply to the Tribunal for a determination on apportionment and this was not excluded from the FTT’s jurisdiction as the Upper Tribunal had wrongly decided.
Price v Mattey & Ors (St Annes) RTM Company Ltd & Anor (2021) UKUT 7 (LC)
Service charge demands for £X were valid as demands, although the sum had been arrived at by mistaken apportionment. The FTT had reduced the amount payable accordingly, and the tenant’s appeal that there had been no valid demands failed.
Laskar v Prescot Management Company Ltd (2020) UKUT 241 (LC)
An application for costs under rule 13 should not be made at the commencement of a Tribunal application (and should have been struck out as a matter of case management. Willow Court Management (1985) Limited v Alexander (2016) UKUT 290 (LC) did not set a ‘test’, it was a framework, or aid. The only test was that in the rule. “The rule requires that there must first have been unreasonable conduct before the discretion to make an order for costs is engaged, and that the relevant tribunal must then exercise that discretion.”
However in this case, the FTT had been wrong to find that the Appellant’s “allegations were made “without a shred of evidence, particulars or follow-through” from which the FTT concluded that they were made for an improper purpose”.
The FTT:
“ought to have asked itself whether a litigant in person who honestly believed her landlord had systematically disregarded its contractual obligations and whose failings had been repeatedly pointed out and gone uncorrected would be acting unreasonably by describing that landlord, in a witness statement supported by a statement of truth, as incompetent, or even “maleficent”. The suggestion that the directors “frequently act unlawfully” was, in context, a reference to the appellant’s belief concerning the restrictions on the activities of a company she understood to be dormant, and possibly also to her allegations of mistreatment by the company’s staff at annual general meetings, and interference with her post. The FTT did not express any view on whether those allegations were made honestly, with a genuine belief in their truth, or were based on a mistaken understanding of the respondent’s obligations or of the facts. It had ruled the allegations of harassment out of consideration altogether, while at the same time advising the appellant that they could be pursued in separate proceedings. In those circumstances I do not consider the FTT was in any position to form the view that the allegations contained in the witness statement were made purely with a view to harassing the respondent and not with the intent of setting out the appellant’s grievances against it.”
Appeal allowed.