Automated Summary
Key Facts
The Applicant, Mr. J Mothersdill, applied for dispensation from consultation requirements under Section 20ZA of the Landlord and Tenant Act 1985 regarding urgent masonry repairs at 1 The Leas, Folkestone. The building's masonry is in poor condition, requiring immediate remedial work to remove loose concrete and prevent danger. The Applicant, acting as Tribunal-appointed manager, provided a sample lease and asserted that other leases have similar terms. Only one lessee supported the application, while others did not respond. The Tribunal found no prejudice to the Respondents from the lack of consultation and granted dispensation, but did not assess the reasonableness or payability of the repair costs.
Issues
The main issue addressed by the Tribunal was whether to grant the Applicant dispensation from the statutory consultation requirements under Section 20ZA of the Landlord and Tenant Act 1985 regarding major works to the masonry of the building. The Applicant, acting as Tribunal-appointed manager, sought to bypass formal consultation with lessees due to delays and lack of response from most residents, arguing that this would not prejudice the Respondents and that urgent repairs were necessary.
Holdings
- The Tribunal granted the Applicant dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements for major works to the masonry of the building. This determination was based on the finding that the Respondent suffered no prejudice from the lack of consultation, as the delay caused by consultation would have exacerbated existing health hazards. The decision explicitly states no determination was made regarding the reasonableness or payability of the costs associated with the works.
- The Tribunal concluded that the failure to follow the consultation process did not prejudice the Respondent, as no lessee demonstrated how consultation would alter the works' extent, quality, or cost. The decision aligns with the Supreme Court's guidance in Daejan Investment Limited v Benson, which prioritizes tenant protection from financial prejudice over procedural compliance in the absence of material impact.
- The Tribunal emphasized that the application was limited to dispensation from consultation requirements under Section 20 of the 1985 Act and did not address the reasonableness of service charges. Leaseholders retain the right to challenge cost reasonableness via a separate application under Section 27A of the Landlord and Tenant Act 1968.
Remedies
The Tribunal granted the Applicant dispensation under Section 20ZA of the Landlord and Tenant Act 1985, allowing them to proceed with major masonry works without following the formal consultation process required by Section 20. This decision was based on the finding that no prejudice was caused to the lessees, and that consultation would only delay necessary repairs.
Legal Principles
- The Tribunal applied the principle of natural justice by considering whether dispensing with consultation requirements would unfairly prejudice the lessees. It concluded that no prejudice was shown, particularly where works were urgent and lessees had not responded to the application.
- The Supreme Court in Daejan Investment Limited v Benson et al [2013] UKSC 14 established that the burden of demonstrating prejudice from a failure to consult lies with the lessee. The lessee must identify what would have been said in a consultation process, and the lessor must rebut credible claims of prejudice. The Tribunal emphasized that consultation requirements are procedural and not ends in themselves.
Precedent Name
- Aster Communities v Kerry Chapman and Others
- Daejan Investment Limited v Benson et al
Cited Statute
- Landlord and Tenant Act 1968
- Landlord and Tenant Act 1985
Judge Name
Judge J. Dobson
Passage Text
- 20. The Tribunal finds that nothing different would be done or achieved in the event of consultation, save for the inevitable delay whilst the consultation process was undertaken, where there has apparently been a long-standing problem and where health hazards exist and such delay would go to prolong and potentially increase those.
- 23. This decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying long-term agreement. The Tribunal has made no determination on whether the costs are reasonable or payable.
- 9. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of Daejan Investment Limited v Benson et al [2013] UKSC 14. The leading judgment of Lord Neuberger explained that a tribunal should focus on the question of whether the lessor had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of the lessor to comply with the regulations.