Case Law

Legal costs incurred by a landlord in connection with litigation brought against it for the enforcement of the landlord’s repairing covenants, which the landlord was unsuccessful in, could not be recovered as service charges. Neither could the landlord recover costs paid to a tenant in settlement of the claim. The expenditure could not be described as having been incurred in “the proper management administration and maintenance” of the property, but in fact was incurred as a result of the landlord’s own breach of covenant.

The Court of Appeal considered the extent to which previous decisions of the Upper Tribunal, other than as to the law, are admissible before, and binding upon, the First Tier Tribunal. The case under appeal concerned a dispute over the premium payable for a lease extension but potentially has wider application to all Upper Tribunal decisions.

Whilst an order for costs made by the County Court does not necessarily limit later recovery of the full amount of costs incurred under the terms of the lease, close attention should be paid to the terms of the order made, especially when parties are compromising proceedings.

A case management decision showing that the Tribunal may be willing to admit new expert evidence after the deadline for filing has passed (and close to the date of trial) if the new evidence is of substantial importance to the matters in issue and will ensure that questions raised by the other side do not go unanswered.

This case concerned the recovery of unpaid service charges.  The landlord demanded of its tenant an interim service charge, being an estimate of the service charge payable for a service charge year.  The lessee failed to pay the amount demanded. Following the demand the lessee assigned the lease.  Subsequently the landlord determined the amount of the service charge. The determined sum was less than the amount that had been demanded of the assignor way of the interim charge.  The landlord demanded the determined sum from the assignee.  The FtT held that the assignee was not liable.  On appeal by the local authority, the UT overturned that decision.  Michael Walsh of Tanfield Chambers represented the appellant local authority.

Background

The Court of Appeal was asked to consider (in yet another case) what is a “house” for the purposes of the Leasehold Reform Act 1967.

A landlord had been entitled to recover VAT by way of service charges which it had to pay to its managing agent in respect of the salaries of the agent's caretaking staff. Such VAT did not fall within the extra-statutory concession set out in VAT Notice 48 at paragraph 3.18.

Where a tenant had paid service charges without demur for a long period of time, it was inferred that he had admitted that the service charges were payable and thus the First Tier Tribunal did not have jurisdiction to determine whether they were payable pursuant to s.27A(4)(a) of the Landlord and Tenant Act 1985. The tenant was thus not permitted to challenge the service charges that were more than 6 years old because they had been admitted.

The First Tier Tribunal have no jurisdiction to hear an application challenging the reasonableness of a service charge when it had already been determined by the county court.