An application for dispensation from the consultation requirements is not required to be made before the determination of an application under section 27A of the Landlord and Tenant Act 1985.
In London Borough of Lambeth v Kelly and others [2022] UKUT 290 (LC); [2022] PLSCS 187 the appellant council was the freeholder and landlord of a Victorian house on Clapham Road, SW9. The property had been converted into five flats of which three were held on long leases. The third respondent was a long lessee of one of the flats.
In 2016, the council carried out works roof repairs following a leak at the property. The repairs were carried out under a qualifying long-term agreement. Schedule 3 of the Service Charges (Consultation Requirements) (England) Regulations 2003, which governed the consultation requirements for qualifying long-term agreement, was engaged. In accordance with schedule 3, the council was required to give notice to each tenant, describing: (a) the nature of the works or where and when a description of such works could be inspected; (b) state the reason the works were required; (c) state the total amount of the estimated works; and (d) specify where any observations should be sent. The council contended that it had properly served the lessees with the requisite notice, but the third respondent lessee alleged that the council had failed to give any notice at all.
The repairs were subsequently completed in 2018. Through the service charge provisions of her lease, the council demanded the third respondent pay the sum of £1,545.56. The third respondent applied to the First-tier Tribunal for a determination as to the payability of the same pursuant to section 27A. The FTT found the council had failed to properly consult and was limited to recovering the sum of £250 only from the third respondent.
The council subsequently applied for unconditional dispensation pursuant to section 20ZA. The third respondent contended that due to the council’s failure to consult, she did not have the information required to assess whether or not she had suffered any prejudice. The FTT agreed. Additionally, the FTT found that the council’s application for dispensation was late because it was made after the third respondent’s section 27A application had been determined.
In allowing the council’s appeal and granting unconditional dispensation, the UT found the FTT was wrong to find that the council was late in making its application for dispensation. There was no statutory requirement that a section 20ZA application had to be made before a section 27A application had been determined.
Further, in accordance with the guidance provided in Daejan Investments Ltd v Benson [2013] UKSC 14; [2013] 2 EGLR 45; [2013] EGILR 4, the UT reiterated the need for a lessee to show that they had suffered actual prejudice from the failure to consult, otherwise dispensation would ordinarily be granted.
Elizabeth Dwomoh is a barrister at Lamb Chambers
