Freeholders of 69 Marina, St Leonards-on-Sea v Oram
| Jurisdiction | England & Wales |
| Judge | The Chancellor,Lord Justice Hooper,Lady Justice Rafferty |
| Judgment Date | 08 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1258 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2011/0373/CCRTF |
| Date | 08 November 2011 |
[2011] EWCA Civ 1258
The Chancellor of The High Court
Lord Justice Hooper
and
Lady Justice Rafferty
Case No: B5/2011/0373/CCRTF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Hastings County Court
His Honour Judge Hollis
Royal Courts of Justice
Strand, London, WC2A 2LL
Bruce Speller (instructed by Funnell & Perring) for the Appellants
Grace Cullen (instructed by Heringtons LLP) for the Respondents
Hearing date: 25 October 2011
Introduction
No.69 Marina, St Leonards on Sea, East Sussex ("the Building") is a substantial Victorian building on the seafront. It has been converted into 6 flats of which 5 have been let on 99 year leases commencing on 16th July 1985. Mr Oram and Mr Ghoorun ("the Lessees") are the lessees of, respectively, the basement and top floor flats on the terms of such a lease. The freehold reversion is registered in the names of the other four tenants ("the Freeholders"). They hold the property in trust for all the tenants and manage the Building on their behalf, including the Lessees.
The leases of the five flats let on long leases, which include those under which the Lessees hold, contain five provisions relevant to this dispute. They are:
(1) "There shall also be paid by way of further or additional rent such sum or sums to be assessed in manner referred to in this clause as shall be a just and fair proportion of the amount which the Landlord may from time to time expend and as may reasonably be required on account of anticipated expenditure
(i) in performing the Landlord's obligations as to repair maintenance and insurance hereinafter contained
(ii) in payment of the proper fees of the surveyor or agent appointed by the Landlord in connection with the carrying out or prospective carrying out of any repairs and maintenance herein referred to and the apportionment of the cost of such repairs maintenance and collection between the several parties liable to reimburse the Landlord for the same and such fees for collection of the rents hereby reserved and the other payments to be paid by the Tenant under this clause." (clause 1(b))
(2) "PROVIDED FURTHER such just and fair proportion shall be such sum as the rateable value of the flat bears to the total rateable value of all the flats in the Building…" (second proviso to clause 1.)
(3) "The Tenant HEREBY CONVENANTS with the Landlord as follows:
(1) To pay the rents and other moneys hereby reserved and made payable at the times and in the manner in which the same are hereby made payable without any deduction whatsoever." (clause 3(1))
(4)"(12) To pay all expenses including solicitors' costs and surveyors' fees incurred by the Landlord incidental to the preparation and service of a notice under Section 146 of the Law of Property Act 1925 or incurred in or in contemplation of proceedings under Section 146 or 147 of the Act notwithstanding in any such case forfeiture is avoided otherwise than by relief granted by the Court and to pay all expenses including solicitors' costs and surveyors' fees incurred by the Landlord of and incidental to the service of all notices and schedules relating to wants of repair of the premises whether the same be served during or after the expiration or sooner determination of the term hereby granted (but relating in all cases to such wants of repair that accrued not later than the expiration or sooner determination of the said term as aforesaid)."
(clause 3(12))
(5) "Subject to contribution by the Tenant as hereinbefore provided the Landlord hereby covenants with the Tenant as follows:
(1) at all times during the said term to keep in good and substantial repair and in clean and proper order and condition those parts and appurtenances of the Building which are not included in this demise or in a demise of any part of the Building" (clause 4(1))
In 2005 there occurred substantial water penetration which necessitated repairs to parts of the Building not subject to any of the six leases. Accordingly, the obligation to carry out the repairs rested on the Freeholders in accordance with the terms of clause 4(1). The repairs were duly carried out by the Freeholders at a total cost of £19,031.36. The Lessees, in common with the other tenants, were liable to reimburse the Freeholders under clause 1(b) their share calculated in accordance with the formula prescribed by the second proviso to that clause.
Any such liability comes within the definition of 'service charge' contained in s.18 Landlord and Tenant Act 1985. The Lessees complained that the amount was too much and the prior consultation insufficient to satisfy the requirements of s.20 Landlord and Tenant Act 1985. Accordingly, the Freeholders commenced proceedings before the Leasehold Valuation Tribunal for (1) dispensation of the consultation requirement under s.20ZA and (2) the determination under s.27A of the amount payable by the Lessees. The application was heard on 17th April 2007. The Tribunal decided, for the reasons given in their determination dated 12th June 2007, that the consultation requirements should be dispensed with and that the sum recoverable from the tenants in proportion to their relative rateable values was £17,691.36. The Tribunal made no order for costs. In any event its ability to do so was circumscribed by Sch.12 para 10 Commonhold and Leasehold Reform Act 2002.
Neither Lessee paid the sum so found to be due by him. On 2nd December 2008 the Freeholders commenced proceedings in the Hastings County Court seeking payment of that and other amounts from each of them. In paragraph 15 it was alleged in respect of the liability found by the Tribunal that Mr Oram owed the net sum of £595.53, having paid £1,071.00 already, and Mr Ghoorun owed £1,740.83. These claims were resisted by the Lessees on the grounds, set out in their defence served on 29th December 2008, that the Tribunal's decision should be enforced as a judgment under CPR Part 70 and not by separate action, the LVT decision was unenforceable until the rateable values of the flats had been determined and that the Freeholders were not entitled to recover their costs incurred before the Tribunal because no award had been made in their favour. On 20th July 2009 the matter was, by consent, allocated to the fast track.
On 20th May 2010 District Judge Nightingale gave the Freeholders permission to amend so as to claim further service charges and interest. She gave judgment against the Lessees for the sums claimed, including interest, of £2,778.81 and £4,100.91 respectively. Such sums included the amounts of £595.53 and £1,740.83 referred to in paragraph 5 above. In her judgment she said:
"5. I am quite clear that this clause [clause 3(12)] in the lease is quite separate to clause 1(b) and this clause is an individual covenant between each tenant and the lessor.
6. I am also satisfied, having carefully considered this clause, that it does not pertain only in circumstances where a notice has been served under Section 146 of the Law of Property Act, which it has not in this case. There have been schedules relating to wants of repair that were served and the matter was referred to the LVT, who made determinations in relation to the value of the repairs to be done.
7. So in my view this clause falls to be determined quite exclusively from clause 1(b) and it binds the tenants in this case to paying all that they have specifically cost the lessors in terms of dealing with these proceedings, both before the LVT and before this court, in relation to solicitors' costs."
On 1st June 2010 the Lessees issued an appellant's notice seeking permission to appeal to the Circuit judge. They contended that the District Judge was wrong to have concluded that the amounts claimed fell within clause 3(12), some of them only became due after the proceedings had been commenced and that the District Judge should have assessed the costs on the basis of a small claim not a fast track claim. On the same day the Freeholders served on the Lessees, so we were told at the hearing of the appeal, a notice under s.146. The notice asserted that the respective leases contained a covenant by the lessee to pay rent and additional rent by way of service charge, that the Lessees had failed to do so with the consequence that the judgment of the District Judge given on 20th May 2010 was given against them. It continued "You have therefore committed a breach of the said covenant". The notice went...
To continue reading
Request your trial
-
Kaushal Corporation v Maria Carmel O'Connor
...following case law examples: Sella House v Mears [1989] 1 EGLR 65. Morgan v Stainer [1993] 2 EGLR 87; Freeholders of 69 Marina v Oram [2011] EWCA Civ 1258; Khan v Tower Hamlets [2022] EWCA Civ 831. As a comparison I have found these cases 26 In Sella, Dillon LJ dealt with a service charge ......
-
LVT/0026/08/14: 11 Llannerch Hall, St Asaph
...an error in the lease.) The Applicant relied upon the Court of Appeal decision of Freeholders of 69 Marina, St. Leonards-on-Sea v Oram [2011] EWCA Civ 1258 (pages 114 – 125) as being the leading authority on this matter that the landlord’s could claim their costs under this provision includ......
-
Decision Nº LRX 90 2013. Upper Tribunal (Lands Chamber), 29-07-2014
...UKUT 0586 (LC) Egerton v Jones [1939] 2 KB 702 Escalus Properties Ltd v Robinson [1996] 2 QB 231 Freeholders of 69 Marina v Oram [2011] EWCA Civ 1258; [2012] L&TR 4 Khar v Delmounty Limited (1998) 75 P&CR 232 Mohammadi v Anston Investments Ltd [2003] EWCA Civ 981 DECISION Introduction In re......
-
No. 1 West India Quay (Residential) Ltd v East Tower Apartments Ltd
...supported his argument before us, as he did before the Upper Tribunal, by reference to the decision of this court in Freeholders of 69 Marina, St Leonards-on-Sea v Oram [2011] EWCA Civ 1258, [2012] L. & T. R. 4 (“ 69 Marina”). As the Upper Tribunal explained, at [61], that case: “concerned......
-
A Small Victory For Landlords
...Small Victory for Landlords – Robinson and others -v- Oram and another [2011] EWCA Civ 1258 The recent Court of Appeal decision of Robinson and others -v- Oram and another [2011] EWCA Civ 1258 (8 November 2011) ("Robinson") represents a small victory for landlords in the ever tenant-friendl......
-
Forfeiture - 8 Of The Hardest Questions Answered?
...been brought into question by the comments of Sir Andrew Morritt in the case of Freeholders of 69 Marina St Leonards on Sea –v- Oram [2011] EWCA Civ 1258; [2012] HLR. 12 (CA (Civ Div)) which suggest that even in cases where charges are reserved as rent, the landlord must serve a Section 146......