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The power to appoint a manager under section 24 Landlord and Tenant Act 1987 (“the 1987 Act”) is wide and flexible. The F–tT is permitted to construct a scheme of management which may go beyond what is contemplated by individual leases. The process does not begin and end simply with the appointment of a manager. It may involve a detailed and extensive drawing–up of the rights and obligations that all parties will have when dealing with that manager.
It is undecided whether the indemnity principle – that a paying party cannot be ordered to pay a receiving party more in costs than the receiving party is itself liable to pay – applies in the F–tT. However, in RTM cases, section 88(2) of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) applies, so as to expressly limit a landlord’s recoverable costs. An over–zealous application of the indemnity principle is to be avoided by tribunals.
Legal costs incurred by a landlord in connection with litigation brought against it for the enforcement of the landlord’s repairing covenants, which the landlord was unsuccessful in, could not be recovered as service charges. Neither could the landlord recover costs paid to a tenant in settlement of the claim. The expenditure could not be described as having been incurred in “the proper management administration and maintenance” of the property, but in fact was incurred as a result of the landlord’s own breach of covenant.
The Court of Appeal considered the extent to which previous decisions of the Upper Tribunal, other than as to the law, are admissible before, and binding upon, the First Tier Tribunal. The case under appeal concerned a dispute over the premium payable for a lease extension but potentially has wider application to all Upper Tribunal decisions.