The Landlord and Tenant Act 1985 lays down rules that apply to residential service charges. The legislation imposes requirements for reasonableness and the Service Charges (Consultation Requirements) (England) Regulations 2003 restrict the amount that tenants can be required to pay for work about which they have not been properly consulted to £250.
London Borough of Southwark v Samuel David Oyeyinka [2014] UKUT 0258 (LC) concerned work that proved more expensive than the parties had expected. The tenant had expected to contribute £8,000 towards the cost of the work, which the landlord had described as “window repairs/renewals”, but ended up with a bill of just over £14,000 following the discovery that the windows were so rotten that they needed to be replaced.
Had the tenant inspected the documentation that was made available for inspection by all the tenants, it would have been seen that the landlord’s contractors had provided alternative estimates for the cost of repairs and replacement. Unfortunately, the landlord did not include the cost of replacing the windows in its notices to the tenants because it planned to repair the windows, rather than replace them (but had left things open in case it proved necessary to do more than it envisaged).
The tenant refused to pay the additional costs claimed. He relied heavily on the fact that the cost of the works had increased by 75% and that the contribution that was being demanded of him had increased by 50%. He claimed that the landlord had failed to consult properly with its tenants, but did not challenge the reasonableness of the costs that the landlord had incurred.
The Upper Tribunal noted that the regulations require landlords to describe “in general terms, the works proposed to be carried out”. The notices sent to the tenants described the work as “window repairs/renewals”. The documentation that was made available for inspection by the tenants envisaged two alternatives and it would be inaccurate to describe the work that the landlord did as something added or new, about which the tenants should have been consulted first.
The tenant could have challenged the reasonableness of the work on the grounds that the windows did not need to be replaced, or that the cost of replacing them was too high, but should have done so at the very outset, and produced evidence to support his arguments in the Leasehold Valuation Tribunal. It was too late to raise this now. Consequently, the tribunal upheld the landlord’s claim for the cost of the work.
It will not always be easy for landlords to decide whether to down tools, in order to consult with their tenants again, if problems arise in the course of work that has been consulted on. Consequently, it is useful to compare and contrast Oyeyinka with Southern Land Securities Ltd v Hodge [2013] UKUT 0480 (LC); [2013] PLSCS 280, where the tribunal ruled that the landlord should have consulted its tenants again before carrying out additional work, which was of a similar nature but which it had not originally planned to undertake. The key to the landlord’s success in Oyeyinka was that it had consulted its tenants about the repair or renewal of the windows – and the documents offered for inspection contained full details.
Allyson Colby is a property law consultant