Leasehold valuation tribunal — Service charges — Landlord and Tenant Act 1985 — Appeal to Lands Tribunal — Whether interlocutory decision of leasehold valuation tribunal appealable — Whether assignor of lease remains a ‘tenant’ for purposes of section 30 Landlord and Tenant Act 1985
In the substantive proceedings B applied to the
leasehold valuation tribunal for a determination as to the reasonableness of
service charges made by the respondent landlord in relation to her flat. At a
pre-trial review, the landlord contended that, as she had ceased to hold any
leasehold interest and thus was no longer a tenant within the terms of section
19(2A) of the Landlord and Tenant Act 1985, B had no right to make the
application. The leasehold valuation tribunal rejected that contention and
issued directions for a full hearing, but accepted that the issue of
jurisdiction could still be raised at the full hearing, and dismissed an
application by the landlord for leave to appeal. The landlord applied to the
Lands Tribunal for leave to appeal.
application was dismissed. The relevant decision of the leasehold valuation
tribunal, for the purposes of para 2 of Schedule 22 to the Housing Act 1980 and
section 31A(6) of the Landlord and Tenant Act 1985, was the decision that
disposed of the application that had been made to them. There was no right of
appeal on decisions of an interlocutory nature. It was not the role of the
Lands Tribunal to oversee the procedures of leasehold valuation tribunals. In relation
to the substantive point of appeal that B was not a tenant for the purposes of
the provisions of the 1985 Act, there were no findings of fact and there was no
evidence; this was fatal to an application for leave to appeal since the
argument sought to be advanced only arose if the relevant facts were
established. In any event, the assignor of a lease may remain contractually
liable to pay the service charge for the period of his interest in the lease.
Section 30 of the 1985 Act did not define ‘tenant’ in exclusive terms.
No cases are referred to
in this report.
Nicholas Berry
(instructed by Shoosmiths & Harrison, of Fareham) appeared for the
applicant.
Giving his decision, MR GEORGE BARTLETT QC, president, said: The applicant,
Sarum Properties Ltd, is the respondent in proceedings before the leasehold
valuation tribunal for the London Rent Assessment Panel. In those proceedings,
Mrs J Buckland has applied to the leasehold valuation tribunal under section
19(2A) of the Landlord and Tenant Act 1985 for a determination as to the
reasonableness of service charges made by Sarum Properties Ltd in relation to
flat 1, 143 New King’s Road, London SW6. Sarum Properties Ltd contends that
Mrs
made it she had ceased to hold any leasehold interest in the premises and thus
was not ‘a tenant by whom… a service charge is alleged to be payable’ within
the terms of section 19(2A). This contention was advanced on their behalf at
pre-trial reviews held by the leasehold valuation tribunal on 16 June and 14
August 1998, but it was rejected by them. They said:
1. Having considered the arguments advanced on
behalf of the applicant and the respondent at the pre-trial reviews held on 16
June 1998 and 14 August 1998, the tribunal considers that at the date of
applications the Applicant was ‘a tenant by whom… a service charge is payable’
pursuant to section 19(2A) of the Landlord and Tenant Act 1985 as amended, in
respect of the period to which the application under the said section 19(2A)
relates, namely service charge costs incurred for the year 1996/1997. The
tribunal directs that the application should go forward to a hearing.
The tribunal then went on to give directions on
other matters, in particular the service of documents and the date of the
hearing. Later, in a letter dated 8 October 1998, the clerk to the tribunal
said:
I understand from the tribunal who made the
decision at pre-trial review that their acceptance of jurisdiction in direction
1 was not intended to bind the full tribunal on the hearing date of 16 December
1998 because, according to normal judicial principles, either party would be
entitled to raise the issue of jurisdiction at the full hearing.
That letter was in
response to a letter from the solicitors for the applicant company in which
they sought leave to appeal against the decision on the pre-trial review. In
the event, the tribunal refused leave on 23 October 1998, and by notice dated
10 November the applicant sought leave from the Lands Tribunal. The hearing
fixed for the 16
The right of appeal to the Lands Tribunal from a
leasehold valuation tribunal is contained in the Housing Act 1980 Schedule 22
para 2 as amended, which provides:
No appeal shall lie from a decision of a leasehold
valuation tribunal to the High Court by virtue of section 11(1) of the
Tribunals and Inquiries Act 1992 and no case may be stated for the opinion of
the High Court in respect of such a decision, but any person who —
(a) appeared before a tribunal in proceedings to
which he was a party; and
(b) is dissatisfied with its decision,
may within such time as rules under section 3(6)
of the Lands Tribunal Act 1949 may specify, appeal to the Lands Tribunal.
Under section 31A(6) of the Landlord and Tenant
Act 1985 no appeal to the Lands Tribunal may be brought from a decision of a
local valuation tribunal under that Act without the leave of the leasehold
valuation tribunal concerned or the Lands Tribunal.
The question that arises is whether the view
expressed by the leasehold valuation tribunal and the direction it gave in
direction 1, following the hearings of 16 June and 14 August, amounted to a
decision of the tribunal for the purposes of the appeal provisions I have
quoted. Mr Nicholas Berry draws my attention to the Rent Assessment Committee
(England and Wales) (Leasehold Valuation Tribunal) (Amendment) Regulations 1997
and in particular regulation 4G relating to pre-trial review. This provides, he
says, for the giving of directions, but there is no provision conferring power
to make an interlocutory
final decision on the question of jurisdiction, and the suggestion to the
contrary in the clerk’s letter of 8 October was wrong.
The provision under which Mrs Buckland made
application to the leasehold valuation tribunal is section 19(2A) of the
Landlord and Tenant Act 1985 (as amended by section 83(1) of the Housing Act
1996).
This provides:
A tenant by whom, or a landlord to whom, a
service charge is alleged to be payable may apply to a leasehold valuation
tribunal for a determination —
(a) whether costs incurred for services, repairs,
maintenance, insurance or management were reasonably incurred;
(b) whether services or works for which costs
were incurred are of a reasonable standard, or
(c) whether an amount payable before costs are
incurred is reasonable.
In the present proceedings the relevant ‘decision’
of the local valuation tribunal for the purposes of para 2 of Schedule 22 to
the 1980 Act and section 31A(6) of the 1985 Act is, in my judgment, the
decision that disposes of the application that has been made to them. I do not
think that any right of appeal arises on decisions of an interlocutory nature,
which do not dispose of the application. As I perceive the scheme of the
legislation, it is not the role of the Lands Tribunal to oversee the procedures
of leasehold valuation tribunals. Its role is to provide an avenue of appeal
once the leasehold valuation tribunal has discharged the duty placed upon it by
the statutes and has determined the application that has been made. It may, of
course, as in the present case, be called upon to satisfy itself that it has
jurisdiction to determine the application that has been made. If it declines
jurisdiction, that will be a disposal of the application. But here the tribunal
has not declined jurisdiction. It holds itself ready to proceed to a hearing
and, following that, to make a decision that disposes of the application. No
right of appeal has yet arisen, in my view.
The substantive point that Mr Berry seeks to raise
is that at the date of her application Mrs Buckland was not a tenant for the
purposes of the provisions of the 1985 Act relating to service charges. She had
assigned the lease of which she previously had been the assignee. The tribunal
has made no findings of fact that bear upon the question, and there is no
evidence of any sort before me. This is, it seems to me, fatal to the
application for leave since the argument that is sought to be advanced only
arises if the relevant facts are established.
I am satisfied in any event, however, that Mr
Berry’s point is not a good one. Section 30 of the 1985 Act as amended
provides:
In the provisions of this Act relating to service
charges —
‘landlord’ includes any person who has a right to
enforce payment of a service charge;
‘tenant’ includes —
(a) a statutory tenant, and
(b) where the dwelling or part of it is sub-let,
the sub-tenant.
Mr Berry argues that an assignee who has assigned
his interest has ceased to be a tenant for the purposes of the definition. I
cannot accept this. Such a person is, or may be, contractually liable to pay
the service charge for the period of his interest in the lease, and I can see
no reason why he should lose the protection that the Act gives him in relation
to the reasonableness of those charges, merely because his interest has been
assigned. ‘Tenant’ in section 30 is not defined in exclusive terms and, given
the purposes of the provision, it I can see no reason why it should not extend
to any person who is liable to pay a service charge by virtue of a tenant’s
interest in the dwelling.
The application is refused.
