Decision Nº LRX 156 2008. Upper Tribunal (Lands Chamber), 26-03-2010
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Nicholas Huskinson |
| Date | 26 March 2010 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 156 2008 |
|
UPPER TRIBUNAL (LANDS CHAMBER) |
|
|
UT Neutral citation number: [2010] UKUT 75 (LC)
LT Case Number: LRX/156/2008
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
SERVICE CHARGES – jurisdiction of leasehold valuation tribunal – construction of lease – whether rent payable by a management company in respect of the common parts recoverable as part of the service charge – Limitation Act 1980 s.21
IN THE MATTER OF AN APPEAL FROM THE LEASEHOLD VALUATION
TRIBUNAL FOR THE MIDLAND RENT ASSESSMENT PANEL
(2) B WOODWARD (HARBORNE) LIMITED
andOLIVE GEDDEN AND OTHERS Respondents
Re: Premises at
Rosegate, Dorridge,
Solihull, West Midlands
Before: His Honour Judge Huskinson
Sitting at the Birmingham Magistrates Court at, Victoria Law Courts,
Corporation Street, Birmingham B4 6QA
on 11 February 2010
Patrick Darby, instructed by Allsop & Co, for the Appellants
Peter Steele of Steele’s Estate Agents and Valuers, for the Respondents
The following cases are referred to in this decision:
Gilje v Charlgrove Securities Limited [2002] 1 EGLR 41
Lloyds Bank plc v Bowker Orford [1992] 2 EGLR 44
Earl of Jersey v North Union Rural Sanitary Authority (1889) 22 QBD 555
Larsen v Sylvester & Co [1908] AC 295
Chandris v Isbrandsten-oller Co Inc [1951] 1 KB 240
Glasgow Corporation v Glasgow Tramway & Omnibus Co [1898] AC 631.
Cadogan v 27/29 Sloane Gardens Ltd [2006] 2 EGLR 89
Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890
Hillingdon London Borough Council v ALC Limited [1999] ch 139 CA
re 3, 12, 23 and 29 St Andrew’s Square (unreported LVT LON/00AW/NSI/200/0054)
-
The Appellants appeal from the decision of the Leasehold Valuation Tribunal for the Midland Rent Assessment Panel (“the LVT”) dated 3 September 2008 whereby the LVT decided that the First Appellant was not entitled to recover as part of the Maintenance Expenses (to which each of the lessees of the premises at the Rosegate Development were obliged to contribute) certain rent payable by the First Appellant, as tenant, to the Second Appellant, as landlord, in respect of the common parts of the Rosegate development.
-
The Respondents had made application to the LVT dated 27 July 2007 whereby they sought to challenge aspects of the service charge levied upon them through their respective leases for all the years commencing 1987. The particular aspect with which this appeal is concerned is the question of the recoverability of the above mentioned rent payable by the First Appellant (hereafter called the “Management Company”) to the Second Appellant (hereafter called “the Freeholder”) in respect of the common parts of the development.
-
In summary the points raised by the Appellants in this appeal are the points raised before the LVT, namely:
-
that the LVT did not have jurisdiction to decide whether the Maintenance Expenses extended to include payments of rent for the common parts made by the Management Company to the Freeholder and that accordingly this Tribunal, on appeal from the LVT, also has no jurisdiction to decide the point;
-
that if jurisdiction exists, then on the proper construction of the Respondents’ leases the Maintenance Expenses do include a rent for the common parts payable by the Management Company to the Freeholder; and
-
that in any event the Limitation Act 1980 alternatively the doctrine of laches prevents the Respondents from obtaining a decision under section 27A of the Landlord and Tenant Act 1985 as amended in respect of any service charge payments which fell due more than six years before 27 July 2007, which is the date of the Respondents’ application to the LVT.
-
-
The appeal to the Lands Tribunal proceeded by way of a review. No evidence was called. At the hearing both Mr Darby and Mr Steele informed me that they did not invite me to view the site. Bearing in mind the issues in this case it seemed to me clear that a view would not in any way have assisted determination of the case.
Facts
-
The Rosegate estate comprises 50 self-contained residential units designed for persons over the age of 58. The estate also comprises gardens and grounds and parking areas, and a flat for a resident warden, and a guest room and an office.
-
The leases to the Respondents (ie the occupying lessees at the Rosegate development) are all in standard form. There is before the Tribunal a copy of the lease of 21 August 1986 in respect of plot 12 and I take the terms from that document. The lease was executed between the original freeholder (who was defined in the lease as the Freeholder) and the Management Company (defined as such in the lease) and Mrs Chance as lessee. In return for a premium of £21,950 the Freeholder demised plot 12 to the lessee for a term of 99 years from 24 June 1985 at a rent of £50 per annum until June 2018 and then subject to two increases so as to become, eventually, £100 per annum.
-
The lease contains the following definitions (inter alia):
“ ‘The Development’ means the land buildings and works described in the First Schedule below and known for development purposes as ‘Rosegate’.
‘The Buildings’ means the self contained properties comprised in the Development (but excluding the Warden flat)
‘The Property’ means the property demised by this Lease as described in the Third Schedule below
‘The Warden flat’ means the self contained first floor flat for occupation by a warden arranged by the Management Company for the purposes stated in paragraph 12 of the Sixth Schedule below.
‘The Properties’ means the self contained dwellings forming part of the Development
….
‘The Guest Room’ means the Guest Room adjoining the Warden flat
‘The Common Parts’ means the parts of the Development intended for use in common by owners or occupiers of any two or more of the Properties and comprising the entrances or corridors and the office common room (with kitchen and WC) garden store laundry room and any other parts of the Development so used in common
‘The Parking Spaces’ means the parking spaces shown hatched on Plan No.1 and any car-parking areas added or substituted as part of the Development
…
‘The Gardens and Grounds’ means the whole of the Development except for the New Roads Buildings and the Parking Spaces
‘The Maintained Property’ means those parts of the Development which are more particularly described in the Second Schedule below and the maintenance of which is the responsibility of the Management Company
‘The Maintenance Expenses’ means the moneys actually expended or reserved for periodical expenditure by or on behalf of the Management Company at all times during the term hereby granted in carrying out the obligations specified in the Sixth Schedule below.
‘The Lessee’s Proportion’ means the proportion of the Maintenance Expenses payable by the Lessee in accordance with the provisions of the Seventh Schedule below.”
By recital (C) it was stated:-
“The Freeholder has agreed to grant to the Management Company a lease of the Development including the Warden flat but excluding the other Properties.”
-
The Property was demised to the Lessee together with the rights in the Fourth Schedule which included
“1. The right to use the Gardens and Grounds and the Common Parts subject to any regulations which the Management Company makes from time to time under paragraph 21 of the Eighth Schedule below
-
A right of way (with vehicles where appropriate) over the New Roads and the Parking Access Area the Common Parts and the Gardens and Grounds
3. … The right to use the Parking Spaces for the temporary parking of any private motorcars subject to any regulations which the Management Company makes from time to time under paragraph 21 of the Eight Schedule below.
…
9. The right to book the Guest Room from time to time if available for use by visitors to the Lessee (not more than two at any one time) provided:-
9.1 Booking should be made through the Warden or in such other way as the Management Company may from time to time direct
9.2 The Lessee shall pay in advance to the Management Company (or to the Warden if the Management Company so directs) such reasonable charge as the Management Company may from time to time fix for use of the Guest Room … any sums so paid by the Lessee or others...
To continue reading
Request your trial