Landlord and tenant – Remedial works – Tenant’s contribution – Demand for appellant lessee to contribute towards remedial works to drains – Appellant disputing liability to pay on grounds of non-compliance with various statutory requirements – Requirement to state landlord’s name and address in demand under section 47 of Landlord and Tenant Act 1987 – Consultation requirements in section 20 of Landlord and Tenant Act 1985 and Service Charges (Consultation Requirements)(England) Regulations 2003 – Leasehold valuation tribunal finding sum demanded not a service charge such that requirements not applying – Appeal allowed
The respondents owned the freeholds of properties located around a square. The appellant held a long leasehold interest in one of those properties. The terms of his lease required him to contribute towards the cost of maintaining or repairing various items including any drains used by him. In November 2006, various residents formed an informal renovation committee to organise remedial works to the drains beneath the square to remedy tree root incursion. The works were carried out in November 2007 and the cost was divided among the properties in the square. In January 2008, the appellant received a demand for £1,222.47 in respect of those works. The demand did not state the name of the landlord; the payee was instead described as “Barracks Square Renovation Committee”.
The appellant was unconvinced of the need for the works and refused to pay. County court proceedings to recover his contribution were commenced in the name of the committee; the respondents were later substituted as claimants. The appellant contended that if the demand was intended to be for payment under the lease covenants, it was invalid because: (i) it did not contain the name and address of the landlord as required by section 47 of the Landlord and Tenant Act 1987; and (ii) the consultation requirements of section 20 of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements)(England) Regulations 2003 had not been complied with.
The case was transferred to a leasehold valuation tribunal (LVT), which found that, inter alia: (i) the sums claimed were not a “service charge” within section 18 of the 1985 Act; (ii) therefore neither section 47 of the 1987 Act nor the statutory consultation requirements applied; but (iii) the appellant, being entitled to use the sewer, was liable on equitable principles to contribute towards the cost of repairing it when necessary. The LVT indicated that it would have granted dispensation from the consultation requirements had the amount in issue been a service charge. It remitted the case to the county court for further determination. The appellant appealed against the LVT’s decision.
Decision: The appeal was allowed.
The appellant’s liability under the lease covenants to pay an amount towards the maintenance and repair of drains was a liability to pay a service charge within the meaning of section 18. It met the requirements of section 18 in that the relevant sum was payable directly for services, repairs, maintenance or improvements; it was not fixed but varied depending on the cost incurred. That cost was incurred by or on behalf of the respondents as landlords, in light of the landlord covenants in the lease requiring the respondents to contribute to the maintenance and repair of the square and not to permit the obstruction of drains. The LVT had accordingly erred in remitting the case to the county court and in finding that section 47 of the 1987 Act and the statutory consultation requirements did not apply.
By the date of the LVT hearing, the appellant had been given notice of the landlords’ names and address because he was in no doubt that the claim was being pursued by the respondents and he had received correspondence from them as landlords. Once that information had been furnished to him, the amount demanded was no longer to be treated as not due under section 47(2).
Although it was not disputed that the consultation requirements had not been complied with, it was appropriate to dispense with those requirements in the light of the LVT’s reasoned conclusion that it would have done so had it found the sum demanded to be a service charge.
James Fieldsend (instructed by Goodman Derrick LLP) appeared for the appellant; the respondent appeared in person.
Sally Dobson, barrister
