Oxfordshire Director of Legal

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Social landlord fails in Upper Tribunal appeal over conditions for dispensing with normal consultation of tenants

Social landlord Aster Communities has lost an appeal to the Upper Tribunal (Lands Chamber) over consulting lessees about works whose cost could be recovered through the service charge.

Aster became engaged in a dispute with residents in a complex of 160 flats in Andover over repairs to asphalt on balconies.

A group of residents took a case to the First Tier Tribunal (FTT), which allowed Aster to dispense with the normal consultation requirements but imposed three conditions on this.

The first was that Aster should be required to pay the lessees’ reasonable costs of obtaining an expert assessment of its new evidence, once that evidence had been disclosed.

Secondly, that Aster should pay the lessees’ reasonable costs incurred in the application to dispense with consultation and thirdly, the costs of the application should not be recoverable by Aster from the lessees through the service charge.

Aster argued at the Upper Tribunal that only the last of these three conditions should have been imposed.

Giving judgment in Aster Communities v Chapman & Ors (LANDLORD AND TENANT : SERVICE CHARGES) [2020] UKUT 177 (LC), HHJ Stuart Bridge said Aster submitted that it should have been for the lessees to instruct an expert, to adduce that evidence before the FTT to establish that the works were unnecessary or inappropriate, and prove that they had suffered actual or real prejudice.

Only once that evidence was forthcoming could the landlord be expected to rebut the lessees’ case, the company said.

The judge said: “I do not agree with the landlord’s submissions in this regard.

“It seems to me that to have expected the lessees to instruct an expert in order to conduct a survey and to comment upon the necessity of the works to the balconies as a precursor to the current application would have been unrealistic.

“The landlord had failed to consult the lessees adequately and then carried out the works to the balconies with the intention of recovering its costs through the service charge. It presented the lessees with a fait accompli.”

He said that having upheld the FTT’s decision on this condition Aster’s objection to the second condition “falls away” while the third was not disputed.

Mark Smulian

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