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Issue No. 87 Winter 2008


was emphasised that the ordinary meaning of the word should be adopted unless it was possible to demonstrate to the contrary that its purpose was otherwise. In this case it had not been.


Rented property


It is a rule of domestic English law that a joint tenancy will terminate on the giving of notice by only one of the tenants. It is no defence to possession proceedings that the other tenant(s) did not consent to the termination. However, in McCann v UK (ECHR NO. 19009/04) the European Court of Human Rights held that such proceedings amount to interference under Article 8(2) of the European Convention on Human Rights with the right to respect for one’s home. Accordingly, there is a right to have the proportionality of the rule determined by an independent tribunal.


Recent unreported LVT decisions


It should be noted that these are decisions of various different tribunals and are therefore not necessarily consistent, nor do they necessarily created precedents for the future.


London Borough of Camden v 37 leaseholders of Grafton Way (17th July 2008): again this local authority landlord was found to have fallen foul of Section 20 of the Landlord & Tenant Act 1985 (see Auger v Camden BC last Newsletter Legal Jottings). Having failed to observe the requirements in respect of a major works programme, the landlord applied to the LVT for dispensation under Section 20ZA. However, its arguments failed and equally on appeal to the LT. The financial implications (ie the windfall which would be enjoyed by the leaseholders at the expense of the taxpayer) and the extra consultation which had been carried out in lieu of the Section 20 procedure meaning, it was alleged, that the outcome would have been the same had the proper procedure been observed were both irrelevant: the leaseholders were prejudiced by being deprived of the opportunity to be heard and it was pure speculation to consider whether the correct consultation would have made any practical difference to the leaseholders. Parliament had imposed a financial penalty for failure – the landlord’s inability to recover costs – and the effect that would have was not a matter for consideration by the LVT.


The leaseholders in Swanlane Estates v Woods and others (23rd Oct.2008) were also successful before the LVT in another Section 20 case although, on appeal by the landlord to the LT, part of the LVT decision was overruled. The leaseholders were not legally represented and, in seeking the assistance of the LVT in obtaining details of the service charge expenditure, they had included items which had been demanded more that 18 months after being incurred; the LVT held that the cost of these items could not be recovered from the leaseholders even though this had not been made a matter of complaint by the leaseholders. It also held that, since the landlord was unable to show it had complied with the consultation requirements under Section 20, it would not be able to recover other costs bringing the total reduction to over £71,000. On appeal the LT held that the LVT had failed to allow the landlord sufficient time (only a 30 minute adjournment) to obtain this information, the point not having been raised by the leaseholders. It therefore referred the matter to a differently constituted LVT allowing the landlord to adduce documentary evidence of its compliance and the leaseholders time to comment thereon. However, the LT upheld the LVT on the 18 month point and the failure by the leaseholders to raise the


Federation of Private Residents’ Associations Newsletter point themselves should not prevent the LVT from doing so.


9


It is now a requirement that, prior to forfeiture for breach of a covenant in the lease, the landlord must first obtain an order of the court or of the LVT that such a breach has occurred. In Re 19 Snowdrop Street, Liverpool (24th June 2008) the tenant had assigned the lease without, as specified in the lease, notifying the landlord within 28 days and paying a registration fee. The application by the landlord to the LVT for a determination that the covenant had been breached was dismissed on the ground that the landlord knew in practice of the new assignee. Unsurprisingly, the landlord’s appeal to the LT was allowed, it being held that it was not for the LVT to consider whether the breach had been remedied or whether there had been any loss to the landlord: there was no dispute that a breach had occurred and this was all the LVT was required to decide; anything else was a matter for the Court.


The scope of the LVT’s jurisdiction was also considered by the LT in San Marino Estates v Peveral (24th June 2008). In this case there were various disputed service charge items and the LVT had ordered that all the leaseholders would be bound by the LVT’s decision (unless the leaseholder notified the Tribunal to the contrary). All items were satisfactorily dealt with at the final hearing save for expenditure on gas, the liability for which by individual leaseholders the LVT found impossible to calculate and it therefore left it that the percentages in the leases would apply. The LT however held that each individual had the right to know what was his/her obligation to pay and the LVT did not have to right to make a broad brush approach.


Previous Newsletter Legal Jottings


Howard de Walden v Aggio (Newsletters 82 and 86) has been further appealed to the House of Lords (2008 34 EG 94) which, in reversing the decision of the Court of Appeal, held that (1) the lessee of a flat which includes other premises is still a lessee for the purpose of the Leasehold Reform Housing & Urban Development Act 1993 and such a lessee may be the tenant of several flats and (2) any alleged practical difficulties can be overcome. This situation which will enable the head lessee of a whole block of flats to extend all the leases in appropriate cases and where no underlessee exists who also qualifies has arisen as a result of the abolition of the residency requirement by the Commonhold & Leasehold Reform Act 2002. It is questionable whether this outcome was intended by Parliament.


REMINDER


Since October 1, 2008 all Landlords need to have an Energy Performance Certificate (EPC) when a building is sold, rented out or constructed. If a tenancy agreement or lease is merely being renewed to the same tenants who were in the property prior to October 1, an EPC will not be required.


The EPC must show the Energy Efficiency Rating or running costs of the building, and a Recommendation Report as to how the energy efficiency can be improved. The certificate lasts for 10 years.


Full details on www.opsi.gov.uk


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