News on the Block

Sadler v Poplar HARCAR

He failed to comply, finally serving his evidence some 6 days late. The matter was set down for determination as to whether or not it should be struck out. The applicant, by this stage represented by Counsel, accepted that he had not complied with the various Directions, but argued that the LVT was designed with the express intention of allowing unrepresented persons to bring cases; in effect the LVT should accept that people will sometimes just get it wrong. There was no prejudice to the respondent in th

Saunders v Jason Court Ltd

The tenant contended that the phrase meant something other than “equal division.” Had the draftsman wanted to produce an “equal division” then he would have used those words. The LVT agreed. The property contained six similar sized flats and three larger ones. A “proportionate share” was more appropriately determined by floor area and ordered the service charges to be recalculated on this basis. Analysis Although the LVT’s decision is short on reasoning, the conclusion must be correct. If a party is to pa

Orchard Poole Management Company v Burley and others

These works were duly carried out and the freeholder sought to recover the costs from the leaseholders. The leaseholders objected these works were not recoverable as they were an improvement, rather than a repair. The freeholder maintained that the works were repairs. The LVT found for the leaseholders. The works had been necessitated not because of any inherent defects in the property, but simply in order to comply with the relevant HSE requirements. The works were additional to the main structure and,

Calland v CDS Housing Association Limited

The applicant applied for a determination of the payability and reasonableness of his service charges. Unlike most LVT cases, the applicant occupied his flat under an assured tenancy agreement (Housing Act 1988), rather than a long lease.
At the beginning of each year, the Housing Association would calculate an amount for the service charges which it would require. The applicant would pay 1/52 each week, with a balancing process at the end of the year. However, the tenancy agreement specified that he would pay 1/24 of the costs.
The LVT made a number of very minor adjustments to the service charges, calculated to be mere pence per week.
Analysis
The significance of this case is not anything in the facts or the decision, but in the fact that a Housing Association has been brought before the LVT to justify service charges in an assured tenancy. Whilst secure tenants of Local Authorities are not allowed to challenge any service charges in the LVT, there is no such prohibition on tenants of Housing Associations. There are far fewer challenges of this nature than one feels (albeit instinctively) there ought to be.
011

Hadayah v London Borough of Camden

The LVT dealt with the matter by simply dispensing with service of the s.20 notice. Analysis This was a sensible and practical solution. Leaseholders cannot use non-compliance with the s.20 notice requirements as a way of securing a windfall. It is, perhaps, unfortunate that the LVT sidestepped the more interesting question, namely whether Camden was obliged to re-serve the s.20 notice after it was returned.

Trustees of the Dulwich Estate v Kaye and others

The wall had been built in about 1961 and, when built, was built inadequately and not in accordance with the then current codes of practice. By 1995 it had fallen into substantial disrepair and was in need of a complete rebuild. The respondents had argued that, as the need for the works arose from an inherent defect in the original construction, they were not obliged, under their leases, to remedy an inherent defect. Alternatively, the works were an improvement and so not recoverable as the lease did not

Majorstake Ltd v Curtis

The landlord explained that it intended to redevelop the respondent’s flat by combining it with a neighbouring flat in the adjacent block. No issue arose as to the intention to redevelop. The issue in the county court was whether or not two adjacent flats in separate blocks could be said to constitute “any premises within which [the first flat] is contained” as required by s.47. The landlord contended that the expression “any premises” was sufficiently wide to refer to the whole or part of a building. The

Abaris Limited v Altoun

The LVT had acknowledged that the applicants’ statement of case was “not perfect” but said that it had identified the main issues and, to the extent that “new” issues appeared to arise throughout the proceedings, Abaris could be said to have been “inconvenienced, rather than prejudiced”. In finding against Abaris, the Lands Tribunal took a very similar approach, stating that, where there is a challenge to the reasonableness of works this must, by implication, include a challenge to all constituent parts,

Munns v Collingwood

Two leaseholders applied to the LVT, saying that they should not have to pay the costs to the extent that they had increased due to the delay. The freeholder replied that the delay had been caused by the failure of the applicants to pay their service charges on time and that she had not wanted to borrow money in those circumstances. The LVT agreed with the landlord and found that she had acted reasonably in delaying the works. It was the arrears of service charges that caused the problem, not the landlord

Mallett & Son v Grosvenor West End Properties

The freeholder resisted the claim, stating that the properties were not “houses” within the meaning of s2(1) of the Act. The first property had been adapted for commercial use and the second property was in such a state as to be unfit for habitation. The County Court judge agreed with these submissions. The Court of Appeal upheld this decision. Neither property was a house designed for living in. The test was, whether at the time the notices were served, the premises were designed or adapted for resident

Hutchinson and others v Bush Homes

The respondent landlord had let 10 of the flats on Assured Tenancies, with the rest being held on shared-ownership. The applicant tenants held their leases as part of the shared ownership scheme. They disputed the service charges demanded by their landlord. Whilst not strictly relevant for the purposes of proceedings before the LVT, it was clear that there was considerable tension between the shared-ownership leaseholders and the assured tenants and that the shared-ownership tenants felt that the assured

Scott v Springboard Housing Association Ltd

The applicant leaseholder was a resident of a retirement block. He, like most of the other leaseholders, was very pleased with the day-to-day management provided by the respondent and, in particular, with the resident manager and her staff.
However, the residents were concerned that the respondent’s head office was rather more slipshod, with poor audit control and inadequate provision made for the sinking funds. They were particularly aggrieved by the mistaken cancellation of a large painting contract and the legal costs charged to them in connection with the decision by the respondent to seek an anti-social behaviour order against the son of one of the residents.
The respondent accepted that there had been a number of errors and, at times, a lack of communication, but that these matters were being resolved. They offered to reduce some of the amounts claimed in the light of these admissions. A number of the errors had already been dealt with internally.
The LVT was disturbed by the poor record keeping of the respondent. It identified a number of service charge items which fell foul of the provisions of s20B and agreed that the reserve funds were set out in such a confusing manner that the LVT itself, let alone the residents, had difficulties understanding them.
The cancellation of the external decoration contract troubled the LVT, but it accepted an offer from the respondent to reduce the costs claimed by 50%.
The ASBO was more problematic. A son of one the tenants had been causing problems for the respondent and, faced with a refusal by the police to take action, the respondent turned to its solicitors. The LVT criticised the respondent for (a) instructing “City” solicitors and (b) not instructing criminal solicitors and barristers. Whilst the respondent is entitled to choose whoever it wants to do its legal work, it could not do so where the costs would, in effect, be met by the leaseholders via the service charge, in addition, the ASBO was sought in order to protect the respondent’s staff, not the tenants. The LVT reduced the amount payable to one third of the actual bill.
Analysis
In many respects, this is a strange decision. Given the excellent relationship that existed between the two parties, quite why this matter was not resolved through informal discussions is a mystery. However, the LVT’s analysis of the ASBO costs is plainly suspect. Whilst it is correct to say that regard must be had to the interests of the party who will ultimately pay the bill (i.e, the leaseholders) the LVT’s decision seems to go too far. Firstly, the solicitors chosen by the respondent were noted housing / property experts with whom they had a long standing relationship. It is certainly arguable that even if the tenants were paying the bill themselves, they would have chosen to use them. Secondly, the LVT is wrong to suggest that ASBO’s should be dealt with by criminal lawyers – as the House of Lords has made clear, ASBO’s are civil matters, not criminal matters and it is wrong to import criminal law ideas into the law of ASBO’s. See Clingham v Kensington & Chelsea LBC; R v (Manchester Crown Court) ex p McCann [2001] 1 AC 787.
009

Case Law