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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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Exmouth Estate v London Borough of Tower Hamlets

The leaseholders applied for a determination of their service charges for 2002 arising out of a major works scheme to a housing estate. The terms of the lease provided that the lessees were obliged to maintain, repair and renew the windows and doors. The freeholder was obliged to maintain the structure of the building.
These clauses were argued to be contradictory. The obligation to maintain the main structure includes an obligation in respect of the windows15. In addition, the properties were Right to Buy leases and, by virtue of s183(2) and 183(3) Housing Act 1985 there was an implied covenant by the landlord to repair the structure and exterior of the flat, including the windows. The question, therefore, was whether the windows were the leaseholders responsibility (as one reading of the lease provided) or the freeholders (as another reading of the lease, taken with the statutorily implied covenants, provided).
The LVT accepted the submission of the freeholder that, where there was any ambiguity, the lease should be construed so as to give priority to the obligations implied by statute.
Analysis
The leaseholders were unrepresented in this case and so it seems the LVT accepted this submission without having the benefit of argument. Regardless of whether or not it is right, it is a timely reminder of the importance of checking for statutorily implied terms, especially when dealing with Right to Buy leases.
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Key Flats Ltd v Commercial Holdings and others

At the hearing, Mr X gave evidence and attempted to do so as an expert. The LVT denied his ability to give expert evidence. He was too closely entwined with the interests of the Respondent companies to be able to give a sound and objective judgment. Analysis This case makes an important point. Can someone with professional qualifications act as an expert and advocate? It frequently happens in valuation proceedings that one person presents the case and gives expert evidence and, in such cases, it is open

London Borough of Camden v Chalcot Estate

Camden wanted to enter into a long term “partnering agreement” with a private sector partner to carry out all works of repair and maintenance to the Estate for the next 15 years. The agreement was to be funded by PFI monies. The Council sought dispensation from the consultation requirements, which they feared would render the contract unacceptable to any PFI partner. The LVT disagreed. It was not convinced that “compliance with the requirements of [the consultation process] will make this project unviabl

Upper Brook Street RTM Company Ltd v Aylwen

The Respondent, through her solicitors, purported to serve a counter notice. The counter notice was not in the form prescribed in the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2003. The LVT determined that the failure to use the prescribed form was fatal. It is a mandatory requirement to comply with the Regulations and s84 Commonhold and Leasehold Reform Act 2002. Any failure to comply with any of the requirements would invalidate the notice. 003

Maunder Taylor v Joshi

The LVT disallowed this approach and took the view that, as the charges were not authorised under the terms of the lease, they were not recoverable costs. The manager appealed to the Lands Tribunal. The Lands Tribunal took a different approach. In its view, the right of the manager to be paid arose not from the terms of the lease but from his appointment as a manager. In the instant case, the management order clearly set out the mechanism and basis for payment and, therefore, the costs were payable in ac

Hutchings v Shattock

The applicant had not served a s22 notice. Rather, he had sent a letter to the respondent and his managing agent explaining his intention. No response was ever received, although it did become clear that the respondent was engaged in a High Court action relating to the property. There was no-one managing the property at the time of the application. The LVT therefore made the Order sought and appointed the managing agent proposed by the applicant.  Analysis A decision which appears to be totally at odds w

Dr & Mrs Schilling v Canary Riverside Properties

The tenants’ service charge appeal had been dismissed but the landlords’ service charge appeal had achieved some success. A second appeal by the landlord, in relation to the costs incurred and the LVT’s order under s20C, was dismissed on the ground that the landlord had not, at that stage, complied with the terms of the lease as regards the mechanism to be applied when demanding service charges. However, although the Lands Tribunal had rejected the appeal, it had been deeply critical of the LVT’s logic an

Roberts v Whitepoint Properties Limited

In any event, the allegations it made were all under consideration by another LVT in relation to a s27A application. The applicants attempted to rectify their error by serving a new s22 notice. However, this was served after the s24 application had been made. The LVT held that it had no jurisdiction to hear this matter. The second notice could not save the process as it was served after the s24 process had started.  Analysis The procedure for appointing a manager is not particularly difficult, and it is r

Dr Shilling v Canary Riverside Developments

The Regulations apply to any contract between a seller / supplier and consumer. In London Borough of Newham v Khatun [2004] EWCA Civ 55 it was held that the regulations applied to contracts between landlords and tenants. This included long leases. The Regulations provide that any term which has not been individually negotiated is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of th

Moat Housing v Chatfield Property

It was a very simple dispute and the LVT directed that it be dealt with on the papers. The Respondent failed to comply with the Directions and failed to submit any documents. The LVT found that this amounted to unreasonable behaviour and ordered the Respondent to pay £300 in costs immediately. 001

Lessees of Frognal Court v Woolsey, Morris & Kennedy

The LVT found that it would only exercise its costs powers if a party had acted in such a way as to go beyond the “normal range of conduct in ordinary litigation”. Analysis The LVT has power to award up to £500 in costs where a party has behaved “frivolously, vexatious, abusively, disruptively or otherwise unreasonably”. Paragraph 10(2)(b) of Schedule 12 of the Commonhold and Leasehold Reform Act 2002. The power to make costs orders was one of the most important reforms in the 2002 Act and should have em

Rymer v The Court Group of Companies

It had been determined that the legal fees charged to her accounts in 2002, 2003 and 2004 were properly charged and that interest could be charged on those amounts. A s20C order was made, limiting the landlord to 50% recovery of its costs of those proceedings. A sum of £5,000 had then been paid by the applicant to the respondent, marked “in full and final settlement.” The tenant sought to challenge her service charge liability, including the legal costs for 2003, 2004 and the costs awarded as part of the
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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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