With Urgency, Without Prejudice…
Earlier this week, the litigation team secured another success for a dispensation matter at the First tier Tribunal (FTT). Despite error in the s.20 consultation process, we successfully argued that dispensation from consultation was required for building safety works - and that the actions undertaken were conducted without prejudice to the leaseholders.
The matter concerned a five-floor building comprising over 50 flats and 3 commercial units, all held on long leases. Our client’s agent was served an enforcement notice by the local Fire & Rescue Service which outlined a range of measures to ensure the block was safe from a fire safety perspective. The agent commissioned a fire safety report, with our client proposing installation of a fire safety system and remedial works on manual and automatic vents.
The managing agent subsequently began the consultation process in accordance with the requirements of section 20 of the Landlord and Tenant Act (1985) and a waking watch was introduced as an interim measure. However, the second stage notices contained errors and third stage notices were not sent regarding the potential work on the vents. Despite this, the managing agent received no objections or formal responses from leaseholders, and given the urgency of ensuring safety, our client proceeded with the works on the basis of making a retrospective application for dispensation with a newly appointed managing agent.
Whilst the respondent leaseholders recognised there was a need for the safety work to be conducted, their primary contention was that they had been effectively misled on the true range of costs due to the failure in the consultation process - and subsequently denied the ability to engage and challenge the proposals and costs. Secondly it was argued that transition between the managing agents had caused delay in works being conducted.
The Tribunal reiterated that its jurisdiction in the matter was solely focused on the reasonableness of dispensing with the consultation requirements, noting that lessees would have opportunity to raise issues as to reasonableness and payability of the cost of the works and to further question the costs if they so desired.
Ultimately the Tribunal found that the respondents could not identify any prejudice, despite defective consultation, and there was no evidence for consequential loss being suffered as the works were deemed necessary for health and safety. With careful consideration of the extent of their remit, the Tribunal recognised that the costs were exactly as per the quotes received and nor was there a causal link between the delay and the errors in consultation. The Tribunal concluded it was therefore reasonable to dispense with the consultation requirements.
Associate Katie Edwards, who acted on the matter, comments further: "This case is noteworthy in that it highlights that the Tribunal has focused solely on the validity of dispensation when safety is the critical factor, despite error in the consultation process. The issues of payability, reasonableness and recoverability under the service charge have been clearly differentiated from the primary concern around ensuring a safe environment for residents when considering the granting of dispensation”.
