Enforcement of First-tier Tribunal Decisions (Termhouse (Clarendon Court) Management Limited v Al-Blahaa – 2021)

The Court of Appeal considered where a decision of the First-tier Tribunal (“FTT”) on an application under section 27A of the Landlord and Tenant Act 1985 (“the 1985 Act”) can be enforced through Court mechanisms.

The Background

On 3 September 2017, the Appellant/Defendant leaseholder made an application to the FTT for a determination of reasonableness and payability of service charges for 2013-2017 under S.27A of the 1985 Act. The FTT made a determination which reduced parts of the service charge payable, and made an order for reimbursement of the FTT fees.

The Respondent/Claimant applied to the County Court at Willesden for the FTT decision to be enforced pursuant to CPR 70.5. On 25 September 2018, the Court ordered that the Respondent may enforced the FTT decision in the Court and specified the amount enforceable as £9,316.04. The Appellant applied for the order of 25 September 2018 to be set aside.

The application was dismissed on the papers; the Appellant appealed that decision. The appeal came before the County Court at Centre London before Her Honour Judge Baucher; the appeal was refused and the Appellant sought permission to appeal to the Court of Appeal.

The decision

The Court of Appeal held that the only issue to determine, at the time of the hearing, was whether the FTT’s decision was susceptible to enforcement in the County Court.

The Court of Appeal held that whilst section 176C of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) allows a decision of the FTT other than one ordering the  payment of a sum to be enforced “in the same way as orders of [the County  Court]”, the FTT decision did not specify what the Appellant owed in its decision; the decision did not try to work out what amount was outstanding from the Appellant, but it was impossible to do so from the FTT decision alone.

As the decision was declaratory in nature, the Court of Appeal held it was not susceptible to enforcement.

Advice and action for landlord and management companies

The case provides clarification as to the orders from the FTT which are susceptible to challenge under section 176C of the 2002 Act.

Therefore, the important thing for landlords is to ensure that, if it wishes to take steps to enforce a stand alone FTT decision (without it having been transferred from the County Court), the FTT will need to be invited to make an order for the payment of a sum to be enforced; a decision what is merely declaratory cannot be enforced via the Court.

However, a declaratory decision would not preclude a landlord from taking enforce steps via service of a section 146 notice before forfeiture; landlords will therefore need to remain live to ensuring that the right to forfeit remains preserved.

If you would like to discuss this case further, or if we can help you in a similar matter, please contact us.