Case Law

We provide summaries and analysis of important landmark legal decisions from the LVT, First-tier Tribunal (Property Chamber) and Higher Courts affecting the residential leasehold property sector. It is a valuable resource for anyone involved in this industry.
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Flat 1, Cropthorne Court, Birmingham

The leaseholder applied to an LVT in connection with the grant of a new lease under s.48 Leasehold Reform Housing and Urban Development Act 1993. The property was a purpose built development dating from 1931. The only issue in dispute was the price to be paid for the new lease.
The Lands Tribunal accepted that, following Cadogan v Sportelli, it was appropriate to set the deferment rate at 5% for flats and 4.75% for houses, even though the instant case might not involve property in the prime central London locations, although left open the possibility that “special factors” might justify a departure from these figures.
The Lands Tribunal also considered the correct rate of capitalisation for ground rent. In the instant case, the expert evidence was that the capitalisation rate should be the same as the deferment rate and that it would only be appropriate to adopt a different rate if the ground rent was substantial. The Lands Tribunal expressly rejected this approach, noting that the factors which determined the capitalisation rate were so manifestly different from those which are relevant to the deferment rate that there is no justification for simply adopting the same figure.
Analysis
The fall-out from the Arib / Sportelli decisions continues to be felt. It seems clear that the deferment rates suggested in Sportelli were to be treated as definitive and, whilst they have been accepted in this case, the reference to “special factors” which may justify a different result will, no doubt, cast despair into the hearts of surveyors across the country. The industry needs clear answers – the reference to “special factors” is an invitation to further litigation.

Cawthorne & others v Hamdan

A number of points of dispute arose and the case proceeded to the LVT and Lands Tribunal. Before hearing in the Lands Tribunal, the landlord served a leaseback notice in respect of the sixth flat. The tenants took the point that, as it was not included in the initial counter notice, the freeholder was not entitled to a leaseback and the issue came before the Court of Appeal. The Court of Appeal held that a landlord who is served with a notice claiming the right to enfranchise must – at the time of servic

Ortt and others v REX Mansions Management Co Ltd

The applicants argued that the costs of these remedial works should not include any contribution towards the cost of remedying the existing defects and advanced the general proposition that a leaseholder is not liable to contribute towards the costs of remedying an inherent defect. The LVT found it unnecessary to rule on this argument, noting that the applicants had failed to provide any expert evidence, either oral or written, to support their claim that there was an inherent defect. It was common groun

33-35 Bryanston Square Ltd v Hercules Marine SA

The applicant pursued service charges going back to 2000. The respondent contended that a proportion of the service charges had been withheld due to breaches of covenant on the part of the applicant and that a number of the charges were now statute barred. There was no evidence before the LVT to support the contention that the applicant was in breach of covenant and, accordingly, the LVT rejected that aspect of the respondent’s case. In respect of the limitation period, the LVT canvassed the possibility both of a 12 year limitation period (for claims made under a deed) and 6 years (for service charges reserved as rent) and concluded that there was, infact, no limitation period in respect of a s.27A application.
Analysis
The question of limitation periods for applications to the LVT continues to remain a contentious and unclear one. The Lands Tribunal must be called upon to examine the situation before too long.

Oakwood Court (Holland Park) Ltd v Daejan Properties Ltd

The building was one of two adjoining mansion blocks. The defendant contended that the boundary between the two buildings dissected the boiler house, which, in turn, provided hot water and central heating to both buildings. To meet this objection, the claimant sought to amend the initial notice by substituting a new plan which did not include the boiler house in its claim. It was common ground that, on any view, a new boiler house or new water system would be necessary to enable the two buildings to be se

Cawsand Fort Management Co Ltd v Stafford and others

In October 2005, the LVT appointed a manager for the property, under s.24 Landlord and Tenant Act 1987. The manager was given control of the entirety of the site, not just the matters relating to the demised leasehold property. The freeholder appealed to the Lands Tribunal. No issue was taken with the appointment of a manager, but it was contended that his powers should be limited to the leasehold property and not to the remainder of the site. The respondent argued that the power to appoint a manager was

Princes House Ltd v Distinctive Clubs

The claimant landlord claimed five instalments on account of service charges from their defendant tenant. The tenant counterclaimed, contending that the landlord had failed to carry out roof repairs at the relevant time. The service charges arose from remedial works to the roof. The landlord had covenanted to use all reasonable endeavours to repair and replace the roof and, in addition, the lease provided a cap on the tenant’s liability for service charges up to December 2003. The landlord had notified the tenant of the intention to do the remedial works, but had postponed them until after the capping period expired.

The High Court held that the landlord had not used all reasonable endeavours to repair the roof and that the works should have been completed by the end of December 2003, such that the tenant would have had the benefit of the capping clause. If the work had been done when required, then the tenant would not have had to pay the sums claimed.

Analysis
This is an interesting case with potentially wide implications. If a landlord has a discretion about when to undertake works, is he required to do so at a time most convenient (and cost-effective) for the tenant? Would this logic be equally applicable to right-to-buy leases and s.125 notices? Or, is it the case that this argument was only available because of the specific covenant to use “all reasonable endeavours”? Sadly, the case was argued and reasoned very much from first principles, rather than on the basis of previous decisions and established case law. It remains to be seen what, if anything, inventive claimants can do with this decision.

43 Rednall Drive

The tenants had applied, under s48 Leasehold Reform Housing and Urban Development Act 1993 for a new lease of 43 Rednall Drive. The only issue between the parties was the price to be paid. The LVT adopted an approach and a final figure which neither party contended for. 
The Lands Tribunal disapproved of this. Whilst it was clear that the LVT was an expert tribunal, it was not entitled to simply substitute its own views without giving the parties a chance to comment upon the situation. The LVT had unilaterally attached an importance to certain improvement works which it had noted during the inspection. Neither of the experts had accompanied the LVT on its inspection nor commented upon these improvements

Analysis
The interplay between the LVTs role as an expert tribunal and a quasi-judicial body has never been an entirely satisfactory one and this case indicates the kinds of problems that can arise.

Amos v 13/14 Gloucester Square Management Ltd

The applicant challenged her liability to pay service charges from 2001 to 2003, contending that she had not been given adequate notice of the service charges, as required by s.20B. The LVT agreed in respect of one of the three years in dispute. As it pointed out, s.20B imposes a strict requirement on landlords and even cases of genuine error will not save the landlord, as there is no discretion in determining such matters. The LVT was prepared to assume that the costs were “incurred” on the last day of the service charge year, but the respondent was unable to produce any written evidence showing that the charges had been notified to the applicant.
Analysis
As the LVT said, the requirement to notify leaseholders of their service charge liabilities is a strict one and this appears to be another case of a landlord who was unable to provide sufficient proof of compliance.

Termination of Tenancies for Tenant Default

In 2004, the Law Commission published a report (also called “Termination of Tenancies for Tenant Default”) in which it was stated that the law of forfeiture was complex, lacking in coherence and with the potential to lead to great injustice. This is the final version of the Law Commission’s recommendations and includes a draft Bill, which, if enacted, would abolish the law of forfeiture. The proposed new law would require a landlord to (a) identify a default by the tenant and (b) give an explanatory state

Ruddy v Oakfern Properties Ltd

Under the terms of the headlease, the defendant was responsible for keeping the property in good repair. The management company paid for the necessary works by means of a maintenance charge, as provided for under the lease. The maintenance charge was then recovered in 24 equal shares from each of the flats. The claimant challenged the maintenance charge for the years 2003, 2004 and 2005. Two preliminary issue arose (i) whether or not the maintenance charge was a service charge for the purposes of s.18 Lan

Saleh v Freehold Managers Plc

It was quite clear that the proposed charges were not contemplated in the lease and, as there was no contractual obligation to pay these charges, they were neither payable nor reasonable. Analysis The failure to read the lease is probably one of the most common errors made by both freeholders and leaseholders.  To put it simply, if a charge is not clearly allowed for under the lease, then a leaseholder cannot be obliged to pay it, even if the freeholder has already incurred costs.  The freeholder in this

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Case Law Editorial Team

Jonathan Upton
Managing Editor
Barrister, Serle Court
Justin Bates KC
Associate Editor
Barrister, Landmark Chambers

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