Metropolitan Properties Ltd v Wilson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ETHERTON |
| Judgment Date | 27 August 2002 |
| Neutral Citation | [2002] EWHC 1853 (Ch) |
| Docket Number | NO: HC 02 2278 |
| Court | Chancery Division |
| Date | 27 August 2002 |
[2002] EWHC 1853 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Etherton
NO: HC 02 2278
MR NIGEL GERALD (instructed by Hammond Bale) appeared on behalf of the Claimant
MR ANDREW McGUINNESS (instructed by Roche & Co) appeared on behalf of the 1st, 3rd, 4th, 5th, 6th, 7th, 9th and 10th Defendants
The 2nd and 8th Defendants were not represented and did not appear in person
th August 2002
MR JUSTICE ETHERTONThe application
This application concerns a dispute between a landlord and some of its tenants as to the carrying out of works of repair.
The Claimant is the landlord of the property at 10 Hyde Park Mansions, Cabbell Street, St Marylebone, Westminster, London ("the Building"). The Building is divided into flats. Each of the first to eighth Defendants ("the Lessee Defendants") is a tenant of one of those flats let on a long lease. There are four other flats, which are let by the Claimant on Rent Act protected tenancies. It is common ground that the exterior and interior common parts of the Building are in disrepair. The Claimant says that it wishes to carry out works of repair to the exterior and the interior and has entered into contracts with contractors to that end. The first and third to seventh Defendants ("the Active Lessee Defendants") say that there is a long history of the Claimant failing to carry out repairs in accordance with its obligations under the leases of their flats ("the Leases") and that, when it has carried out such work in the past, there has been gross and unreasonable overcharging of the tenants. They do not want the Claimant to carry out repairs to the exterior or the interior, but wish to carry out the repairs themselves through contractors selected by themselves. All or some of the Lessee Defendants caused the tenth Defendant, of which the ninth Defendant is a director, to erect scaffolding on the exterior of the Building preparatory to the carrying out of repairs to the exterior of the Building on the instructions of the tenants, or some of them.
On this application, the principal heads of relief sought by the Claimant are that the Lessee Defendants be restrained from preventing the Claimant having access to the common parts of the Building and from carrying out works of maintenance, repair redecoration or renewal of the common parts, and that the ninth and tenth Defendants be restrained from trespassing on land in the possession of the Claimant and, in particular, from causing or permitting scaffolding to remain at or on the front elevation of the Building.
The Claimant has been represented before me today by Mr Nigel Gerald, counsel. The Active Lessee Defendants, that is to say the Lessee Defendants other than the second and eighth Defendants, have been represented before me today by Mr Andrew McGuinness, counsel. The second and eighth Defendants have not been represented before me and have not appeared in person.
The essential facts
The Building forms part of a larger area of land of which the Claimant is the landlord. 1, 2, 3, 4, 5, 6, 8 and 10 Hyde Park Mansions ("the Blocks") are contiguous and form a square, with streets on all four sides. They were all constructed about the same time and in the same manner. The Claimant is the landlord of all of them. The Building adjoins Blocks 1 to 8. In all the Blocks together there are 94 flats, of which the majority are let on long leases. In each Block, however, there are some flats let by the Claimant on regulated tenancies. As I have said, in the Building four of the twelve flats are let by the Claimant on such tenancies.
There is a "recognised tenants association" for all the Blocks, including the Building, within the meaning of the Landlord and Tenant Act 1985, section 29. It is called the Hyde Park Mansions residents' association ("the HPMRA"). The Lessee Defendants, or some of them, have set up or purported to set up a residents' association just for the Building. They have called this the 10 Hyde Park Mansions Lessees Association ("10 HPMLA"). The first and sixth Defendants are its Chair and Secretary respectively. The evidence before me does not disclose precisely when and in what manner it was formed, or who are its members, what are its terms of association, and how its decisions are made. It is not recognised by the Claimant. It has not been recognised, for the purposes of section 29 of the 1985 Act, by a certificate of the Leasehold Valuation Tribunal.
There appears to be a long history of complaints by the Lessee Defendants, or some of them, about the state of repair and decoration of the Building. There has been put in evidence complaints about the interior of the Building made as long ago as 1994. It is said, on behalf of the Active Lessee Defendants, that the exterior has not been repaired for at least ten years. I have seen photographs of the current state of the exterior which show disrepair. Indeed it is not in dispute that the exterior and the interior are in need of repair.
Each of the Leases provides for the Claimant to maintain, repair, redecorate and renew the structure of the Building and the common parts. There are also provisions for the payment of a service charge.
There are outstanding disputes between all or some of the Lessee Defendants and the Claimant about service charges. The Claimant's evidence is that the Lessee Defendants have been withholding some £100,000 or more in respect of service charges, although Mr Gerald, in his oral submissions, mentioned the lesser sum of £78,000. The Active Lessee Defendants complain that the work to which the service charges relate has not been carried out to a proper standard, and the charges are excessive. In these proceedings, the Claimant claims against the Lessee Defendants arrears of rent and service charges, and forfeiture for non payment. I am plainly unable to resolve those disputes on this application.
On 23rd June 2001 Hughes Jay & Panter, the Claimant's surveyors, prepared a revised scheme of works to the interior of the Building which was sent out to tender on 24th July 2001. Three companies tendered for the work, and the tenders were sent to Hughes Jay & Panter on 22nd August 2001 for analysis. They prepared a report dated 30th August 2001. RR Trading Ltd ("RRT") submitted the cheapest tender. A consultation letter was sent to all long leaseholders on 31st October 2001 in accordance with the statutory scheme in section 20 of the Landlord and Tenant Act 1985. The Lessee Defendants were given an extension of the consultation period to 25th January 2002. The contract was then let to RRT. Subsequently, additional works requested by the Lessee Defendants were incorporated in a revised quote by RRT. On 25th June 2002, at a meeting of the occupiers of the Building called by the Claimant, a start date of 1st July 2002 was announced. On that date the Claimant issued RRT with an order to commence works.
At a meeting on 8th July 2002 the sixth Defendant asked for the works by RRT to be suspended.
The Claimant acceded to the request that RRT suspend its works.
On 15th July 2002, Roche & Co, solicitors instructed apparently by the first and sixth Defendants, wrote to the Claimant alleging that the "proposed internal redecoration, currently halted upon representations from our clients, is unacceptable in standard and costs". Those solicitors also said "Our clients are currently collating estimates for the same job, to a higher standard, at about half your contractor's price…"
None of the Defendants has in fact produced a specification for internal works or a contract or proposed contract entered into, or to be entered into on their behalf or on their instructions. No detailed account has been given of the alleged defects or deficiencies in the contract between the Claimant and RRT. In this connection, it should be noted that on 15th August 2002 Lightman J ordered, among other things, that the Active Lessee Defendants do, by noon on 16th August 2002, serve on the Claimant's solicitors copies of all plans and schedules of the work which it is proposed that those Defendants carry out at the Building, and all contracts for such works, and all insurance policies taken out in respect of those works.
Mr Richard Osiguwa, the Claimant's manager for the area in which the Building is situated, has given evidence that he attended the Building on 22nd August 2002, and he observed that internal decorative works were being undertaken, presumably on the instructions of the Lessee Defendants or some of them, notwithstanding this application by the Claimant and the non-disclosure by the Active Lessee Defendants of any contract or specification for the carrying out of any internal works.
Mr Osiguwa's evidence is that RRT is ready and able to go back on site.
So far as concerns external works, a specification for external works for all the Blocks was provided by Hughes Jay & Panter, and was sent to the HPMRA for comment on 18th January 2001. Mr Osiguwa's evidence is that Mr Mulroy of that Association distributed copies of the specification relating to each Block to each staircase association member. There was a meeting with residents from all Blocks just before Christmas 2001, at which Hughes Jay & Panter suggested that Pia Paleologo Interiors be appointed by the leaseholders of all the Blocks. The leaseholders were invited to nominate contractors to tender, and on 30th January 2002 they nominated five contractors. One of the nominees, United House Ltd, appears subsequently to have declined to tender. The Claimant added another three contractors to the list of prospective tenderers.
In the meantime, the HPMRA...
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