Two recent First-tier Tribunal decisions serve as useful reminders of a couple of practical points when seeking a variation of leases under the Landlord and Tenant Act 1987. First, if appropriate, be flexible in the variation that one is seeking. Secondly, the tribunal does scrutinise both the drafting of proposed leases and that the correct procedure has been followed – if it has concerns on these fronts the granting of any variation can be significantly delayed.
Clarion Housing Association Ltd v The Leaseholders of Mercian Court BIR/41/UD/LVL/2018/0001 concerned the wish to remove reference to a resident caretaker. Clarion operated a leasehold scheme for the elderly with a covenant that there would be a resident caretaker. However, the last resident caretaker had retired in 2010 and since that time it had been unable to secure one. It therefore sought a variation that reference to a resident caretaker should be excised.
The tribunal visited the site and considered the written representations made. On behalf of one of the lessees it was contended that, as the accommodation was of a “sheltered” nature, an elevated level of service was appropriate. The tribunal issued directions in the form of questions exploring (among other things) how Clarion intended to provide a service equivalent to that of the resident caretaker and how such a service would be paid for.
Clarion obviously considered the questions carefully and appreciated the concerns that the tribunal must have had to have posed them. It ceased pursuing mere excision of the original term and sought instead an amendment that offered equivalency by inserting a term which provided for the provision of an emergency call system. The tribunal accepted that this change was appropriate and granted it.
In Talmont Properties Ltd v Various Leaseholders BIR/ooCN/LVT/2016 0001 it was asserted that the leases were imperfect in the provisions made for maintenance, repairs and insurance. “As a result of these defects, the properties had fallen in to disrepair and were, as the applicant stated ‘in urgent need of significant improvement works’”.
The application was made on 21 April 2016 but the decision was not made until April 2019. Factors contributing to the length of time this took appear to have included errors in the drafting of the leases, the need to notify third party lenders, trying (and failing) to obtain sufficient consents and the consequential need to advise the lessees that section 35 was being relied on.
Representatives must be careful to ensure that the proposed leases are correct and that they can show appropriate notices have been given, failures on either front can contribute to delays.
Elizabeth Haggerty is a barrister at Lamb Chambers
