Mark Eaton of HPLP Solicitors has successfully acted for a number of leaseholders in striking out an application made by Wandsworth Council to the First-tier Tribunal under its statutory ‘service charge’ jurisdiction under section 27A Landlord and Tenant Act 1985.
This jurisdiction allows a landlord to apply to the Tribunal in advance of carrying out works on a residential building to get a determination as to whether, if the works were carried out, the cost would be recoverable from the leaseholders as a service charge.
Normally where a pre-emptive application is made, the landlord will identify a specific block, produce evidence as to the necessity of the works, and calculate their estimated costs. The Tribunal will then use this information to rule whether these specific works are payable under the lease.
What differed in this case, was that Wandsworth sought a blanket determination as to whether, if it was to undertake works of retro-fitting sprinkler systems to all of its residential blocks of flats of 10 or more stories, they would be payable under the leases. It relied on a clause in its leases which allowed it to “do such things as the Council may decide are necessary to ensure the efficient maintenance [and] administration [and] security of the Block”.
The leaseholders represented by HPLP Solicitors objected to the Council’s “one size fits all” approach. They argued that in order to come within the lease provisions, there had to be evidence that the landlord had considered the necessity of retro-fitting sprinklers in each individual block. After all, given the variation in the construction and fire safety measures of different blocks, it was highly likely that the need for sprinklers would also be variable. It followed that since the Council had failed to provide any specific information as to the necessity of the works on a block-by-block basis, the Tribunal had no jurisdiction to determine the application.
The Tribunal agreed with the Leaseholders that the application had to be struck out. To ask the Tribunal to make a decision ‘in principle’ was an abuse of process. It had no jurisdiction to make declarations on the proper meaning of the leases in a vacuum.
As the leaseholders made clear in their submissions, they were not arguing that there was no need for sprinklers at all, or that they should not be retro-fitted in any of the blocks. What they objected to was the Council’s suggestion that they were entitled to charge leaseholders for doing so without first determining individual necessity. The Tribunal stressed the importance of this distinction in its decision.