Landlord and tenant – Service charge demand – Statutory requirements – Section 21B of Landlord and Tenant Act 1985 – Appellant bringing county court proceedings against respondent for unpaid service charges – Leasehold valuation tribunal determining that charges properly withheld and county court proceedings premature – Whether appellant serving service charge demands complying with section 21B – Appeal allowed in part
The appellant served statutory notices and brought county court proceedings against the respondents because of their failure to pay service charges for the years 2008 and 2009 in respect of chalets that they leased in its holiday park. The respondents applied to the leasehold valuation tribunal (LVT), under section 27A of the Landlord and Tenant Act 1985, to determine their liability for the charges. Those proceedings were consolidated with the county court claims and all were heard by the LVT.
The LVT determined that the respondents had been entitled to withhold certain of the amounts charged since the appellant had failed to serve demands complying with section 21B of the 1985 Act; the requisite summary of the tenants’ rights and obligations had not “accompanied” the demands, within the meaning of section 21B(1) and regulation 3 of the Service Charges (Summary of Rights and Obligations, and Transitional Provision) (England) Regulations 2007. It concluded that, since statute-compliant demands had not been served until November 2009, after the commencement of the appellant’s county court proceedings, those proceedings were premature and an abuse of process.
The appellant appealed. Regarding section 21B, it submitted that: (i) in respect of the service charge demand of April 2008, a summary of tenants’ rights and obligations sent 11 days after the demand, once the respondents had pointed out the omission, was sufficient to validate the demand; and (ii) in respect of the demand of July 2009, sending a photocopy of the Queen’s Printer’s form of the 2007 Regulations with the demand was sufficient, since the only omission from the demand was the required heading and this was contained in the regulations.
Held: The appeal on the section 21B point was dismissed; an appeal on a separate issue, as to whether the service charge was payable quarterly or annually, was allowed.
In respect of the April 2008 demand, a summary sent 11 days after the demand to which it was intended to relate could not be said to have “accompanied” the demand and therefore did not comply with section 21B of the 1985 Act. The sum demanded in April 2008 was not payable until the later demand in November 2009, accompanied by the summary, had repaired the defect.
Sending a copy of the relevant statutory instrument, namely the 2007 Regulations, together with the July 2009 demand had not constituted compliance with the statutory requirements. The requirement was for a document with a specific title – “Service Charges – Summary of tenants’ rights and obligations” – and a specific text. The obvious purpose of that was to ensure that the tenant had before it a statement of the rights and obligations set out in the 2007 Regulations. The heading was important in directing the tenant’s attention to what it contained. Since the statutory instrument had its own title, and contained the text of regulations 1 and 2 before regulation 3 set out the requirement for the heading and the statement, it did not itself constitute the document that it prescribed and did not fulfil the purpose that underlay the requirement.
It followed that the respondents had been entitled to withhold payment of the service charges until they received the November 2009 demand accompanied by the requisite summary. At the time when the appellant’s county court claims were issued, the respondents had been entitled to withhold payment of the amounts claimed in those proceedings.
Adam Rosenthal (instructed by Fosters, of Norwich) appeared for the appellant; Andrew Lane (instructed under the direct access scheme) appeared for the respondents.
Sally Dobson, barrister
