Brief notes on assorted cases of some interest that we haven’t otherwise covered. (Well, of interest to me. Other people may be interested in some or all of them. Covering possession, service charges, tribunal costs, management, Defective Premises Act, rent repayment orders and more.)

Naylor & Ors v Roamquest Ltd & Anor (2021) EWHC 567 (TCC)

Leaseholder’s pleadings of defects under a section 1 Defective Premises Act 1972 claim could not proceed where they were based on a suspicion that the remedial works will prove to be inadequate. The particulars of claim had to identify particulars of specific, identified defects, or their location and extent. The claimants, who had issued under limitation restrictions, were given the opportunity to amend. The defendants failure to disclose relevant documents on the scope of works “does not absolve the Claimants from the need to investigate, using appropriate experts to identify any defects in the construction and/or the remedial works, and to plead a coherent and adequately particularised case.

The defendant’s argument that damages would be restricted to the service charge levied on each of them in respect of the costs of remedying the alleged defects was rejected.

If the Claimants established the existence of defects in the tower blocks, amounting to a breach of contract and/or statutory duty on the part of the Defendants, as a matter of principle, it would be open to them to claim substantial damages based on the diminution in value of their property assessed as the reasonable cost of reinstatement. The ability of each of the Claimants to recover as damages the cost of carrying out any part of the remedial works would depend on whether they could show that the specific works were reasonable and proportionate to remedy the breach in question.

Rendlesham Estates plc v Barr Ltd [2014] EWHC 3968 (TCC) upheld.

Sportcity 4 Management Ltd & Ors v Countryside Properties (UK) Ltd (2020) EWHC 1591 (TCC)

A s.1 Defective Premises Act 1972 claim was struck out where the original completion with build defects were out of 6 years limitation. Subsequent remedial works might have their own 6 year limitation period, but only in respect of those works, not the original defect.

Powell & Co Investments Ltd v Aleksandrova & Anor (2021) UKUT 10 (LC)

A lease clause requiring year end service charge demands to be accompanied a certified account of the lessee’s liability and  “the liability of the Lessee under the provisions hereinbefore contained shall be certified by a Chartered Accountant to be appointed by the Lessor” meant what it said – the demands were not payable without certification of the liability by a chartered accountant. The lease did not, however, specify that this meant audited accounts.

Benthan v Lindsay Court (St Annes) RTM Company Ltd & Anor (2021) UKUT 4 (LC)

A Tribunal appointed manager had the right to manager several blocks under Landlord and Tenant Act 1987. Subsequently, leaseholders of one of the blocks had obtained the right to manage under Commonhold and Leasehold Reform Act 2002. The freeholder had applied to vary the order appointing the manager to ensure that he continued to manager the block that had acquired RTM. The FTT held that it did not have jurisdiction to make the order. The Upper Tribunal dismissed the appeal. Changing the terms of the order to take affect against a person not bound by the original order was not a variation, it was a new order, and required new grounds to make an order taking way the right to manage. Appeal dismissed.

The London Borough of Lambeth v Gniewosz (2020) UKUT 274 (LC)

Replacement of a roof was a ‘repair’ under the relevant lease clause. It did not have to be a like for like replacement. The proposed work was not a breach of covenant die to the materials proposed to be used and the First Tier Tribunal had erred in so deciding. The correct test for a breach was Proudfoot v Hart (1890) 25 QBD 41 – “’Good tenantable repair’ is such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it”. Matter remitted to the FTT where the issue was more likely to be the reasonableness of the cost of works, but potentially including the aesthetics of the proposed materials under that consideration.

Kensquare Ltd v Adwoa & Anor  (2020) UKUT 359 (LC)

A lease clause requiring notice of interim service charge amount one month before the start of the financial year did not mean that time was of the essence, so as to rule out a ‘late’ demand. Interim charges demanded for retrospective periods were payable. A previous FTT decision with the same parties did not create an issue estoppel where there was no argument or evidence on the specific issue in the previous hearing, nor was the issue decided upon.

On costs claimed by the freeholder, Freeholders of 69 Marina, St Leonard’s on Sea v Oram (2011) EWCA Civ 1258 was not, on this particular issue, decided per incuriam. A lease clause providing:

“pay all costs charges and expenses (including Solicitors’ costs and Surveyors’ fees) incurred by the Lessor for the purpose of or incidental to the preparation and service of a Notice under Section 146 of the Law of Property Act 1925 notwithstanding forfeiture may be avoided otherwise than by relief granted by the Court…”

encompassed the freeholder’s costs of previous FTT proceedings brought by the freeholder to determine service charges payable. In addition costs could be sought through the service charge as a lease clause stating

“5. The cost of employing such professional advisers and agents as shall be reasonably required in connection with the management of the building.”

encompassed FTT litigation costs.

Canada Square Operations Ltd v Potter (2021) EWCA Civ 339

‘Deliberate concealment’ under Section 32 of the Limitation Act 1980 – a ‘deliberate breach of duty’ under s.32(2) was clarified by the Court of Appeal. ‘Deliberate’ can mean ‘reckless’ and ‘breach of duty’ can include ‘any legal wrongdoing’, it does not have to equate to a specific contractual, tortious or fiduciary duty.

S v T (2021) EWFC B11

A family law case, noteworthy because the cladding scandal and the lack of an EWS1 rendered the terms of a consent order finalising financial settlement on a divorce impossible to perform, causing a potential £225,000 loss in the value of a flat that one party was to buy the other party out of. The Court delayed fulfilment of the order for an unspecified period, with interest running.

Arag Plc v Jones & Anor (2020) EWHC 3484 (Comm)

Mr Jones and Ms Gibson had brought a disrepair claim against their landlord Mr Francis. The tenants’ solicitors, Newbold & Co, had applied for an After the Event insurance policy, but for some reason, only for Ms Gibson. (No, I don’t understand why either.) The landlord had counterclaimed for rent arrears, and at trial disrepair damages of £1,290 were exceeded by the counterclaim award of £3,135. Mr Francis was awarded his costs jointly and severally against the tenants, which were eventually agreed at £40,000, which was paid by ARAG. ARAG then brought a subrogated claim against Mr Jones for half the costs. (Mr J brought a Part 20 claim against Newbold & Co for an indemnity, but that was not decided here.)

The High Court held the claim was under common law, not Civil Liability (Contribution) Act 1978. Limitation was therefore 6 years, not 2 years.

The policy terms were required to indemnify loss, not pay out contingent on an event (like life insurance), so ARAG were entitled to exercise subrogation, salvage and contribution rights. But there was no evidence that Ms G had assigned her rights to ARAG, so the claim was wrongly brought under ARAG’s name and eveidence of assignment would be needed before judgment.

Irivine  v Metcalfe & Ors (2021) UKUT 60 (LC)

A landlord appealed against  rent repayment order for an unlicensed HMO on the basis that for part of the period she had let the property to a company which had sub-let it, so she was no ‘in control’ of the property. Both parties agreed noot to await the Court of Appeal decision in Rakusen v Jepson (due to be heard in July 2021). The Upper Tribunal followed Rakusen v Jepsen (2020) UKUT 298 (LC), found that the landlord had committed the offence under section 72(1) of the Housing Act 2004 and dismissed the appeal.

Davies v Wilson.  Bristol County Court, 11 February 202. DJ Watson (Unreported, we’ve seen the note of judgment.)

Mr Davies brought a possession claim against his tenant, Mr Wilson. (No s.21 could be served as the property was an unlicensed HMO.) The claim was on grounds 1, 6 and 12-14 Schedule 2 Housing Act 1988. The main parts of the claim were that Mr D intended to return to live at the property and had given written notice of this to Mr W prior to entering the tenancy agreement (or that it was just and equitable to dispense with notice) or that Mr D intended to carry out substantial works that needed vacant possession. There were other allegations that Mr W had breached the tenancy agreement, neglected the property or committed a nuisance.

Mr D admitted that no written notice had been given for ground 1, but argued for dispensation from notice. It was in dispute whether any section 8 notice had been served on any of the grounds . But the claim and particulars made no mention of seeking dispensation from notice.

trial took 3 days, spread out over nearly a year, between December 2019 and November 2020. Given the evidence, the core issue was the credibility of Mr D in bringing his case.

Unfortunately for Mr D, credibility was not his strong suit.

In connection with these proceedings, Mr Davies initially pursued an application for an interim possession order (an IPO), an application which was rejected by the Deputy District Judge at a hearing in April 2019.  Matters which affect his credibility include his conduct of that application.  In particular he signed the application for the IPO asserting that Mr Wilson was a trespasser and had not been given a right of occupation.  That was plainly not the case.  I was not impressed with Mr Davies’ explanation for doing that. 

Mr D’s written evidence also included various falsehoods in relation to hearing from the local council on works required to the property and the safety of an oil tank. Further, it was clear that Mr D’s witnesses would say what he told them to say.

The court held:

1. Mr W had been given a tenancy of the part of the property he was occupying, and shared use of other areas.
2. If a section 8 notice was served, which was not established, it was only partial, omitting the formal parts, so was invalid.
3. There was no equitable reason to dispense with notice
4. Even if that was wrong, Mr D’s evidence that he had orally told Mr W, before the tenancy, that he would want to move back in, was not accepted. Mr D had no such intention at the time.
5. Mr D had not provide any evidence of either his intention or practical ability to carry out redevelopment works in respect of ground 6.
6. Grounds 12-14 failed. The grounds were not evidenced.  An as to keeping chickens, Mr W was entitled to do so (our note).

In view of my findings on the various grounds relied upon, even if I had dispensed with the requirement of a valid section 8 notice duly served, I would not have made a possession order. If, contrary to my rulings, the limited elements of conduct I have found do somehow constitute breaches or waste or nuisance falling within grounds 12-14, I am satisfied that it would not have been reasonable to make a possession order, neither would I have considered it reasonable to make a possession order suspended on terms. Any breaches or acts of waste or nuisance were of a minor nature and short-lived. Mr Wilson cooperated with requests made by or on behalf of his landlord, for example, to remove vehicles or to provide a key to the lock. I am satisfied that Mr Wilson has behaved responsibly.

Claim dismissed, with costs against Mr D.