Triplerose Ltd v Grantglen Limited & Cane Developments [2012] UKUT 0204 (LC)

A dispute arose between landlord and lessee about the service charges for flats 58 and 60, Essendine Mansions, Essendine Road, London, W9 2LU. The lessee was Triplerose Ltd. The landlord at the material time was Cane Developments, Grantglen Limited and Holly Marsh.

The LVT heard the application, including oral evidence on both sides, on 13 February 2012. The amount of the service charge in dispute was £6,923.64 (£3,461.82 per flat). For the purposes of the appeal, two of the points determined by the LVT are relevant.

First, even though the landlord at the time was Cane Developments, Grantglen Limited and Holly Marsh, the names given on the service charge demands were Cane Developments, Paul Marsh (a director of Grantglen Limited) and Holly Marsh.

Second, the parties could not agree whether the demands and summaries of tenants’ rights and obligations, as required by section 21B of the LTA 1987, were served on the lessee.

On the first point, the LVT determined that the error of naming Paul Marsh rather than Grantglen Limited did not breach s.47(1)(a) of the Landlord and Tenant Act 1987 because the error:

• Caused no prejudice, and
• Was rectified by the landlord notifying the lessee of the correct names in its LVT application.

In order to determine the second point, the LVT heard oral evidence from both sides, and had sight of a number of documents on the factual dispute as to whether the demands and summaries of tenants’ rights and obligations were served on the lessee. They concluded that they preferred the landlord’s evidence to the lessee’s. They gave reasons for their conclusion.

The lessee appealed.

Permission was refused by the LVT, but was granted by the then President, George Bartlett QC. The appeal itself was a review of the LVT’s determination, and was decided by HHJ Robinson on written representations.

The grounds of appeal

There were two grounds of appeal:

• The LVT should have determined that the failure to name Grantglen Limited on the demands for service charge was a breach of s.47 of the Landlord and Tenant Act 1987 and that the service charge was therefore not payable;

• The LVT’s finding that the service charge demands had been accompanied by the summary of tenants’ rights and obligations was against the weight of the evidence.

Section 47

HHJ Walden-Smith, allowing the appeal on this point, said:

“The definition of demand in section 47(4) includes demand for a service charge. It does not make any difference as to whether there has been any prejudice or not: the provision of the name and address of the landlord is obligatory…

“The requirement to provide the name and address of the landlord is not simply for the purpose of providing the tenant with an address through which he can communicate to the landlord: it is to enable the tenant to identify the landlord (see Beitov Properties Limited v Elliston Bentley Martin [2012] UKUT 133 (LC)).  Even if the inclusion of Grantglen Limited on the demand had no practical benefit in the circumstances of this case, it was a still a breach of the provisions of section 47(1) so that, pursuant to the provisions of section 47(2) of the LTA 1987, the service charge is not due before the information is furnished on the demand in accordance with section 47 of the LTA 1987”.

In HHJ Walden-Smith’s judgment, the breach could not be rectified by the proper name and address being included on the application to the LVT because s.47 required that the name and address of the landlord be provided on the demand.

“It will be necessary (if this step has not already been taken) for the demand to be re-served and, if necessary, for further proceedings for recovery of the service charge (now that the sum outstanding has been determined by the LVT) to be issued”, she concluded.

The conflict in evidence

HHJ Walden-Smith did not consider that this second ground of appeal had merit, saying:

“It is a matter for the Tribunal at first instance to resolve factual conflict. The LVT heard from both [parties] and determined that they preferred the [landlord’s] evidence. That was a matter for them, and I do not consider that there is anything in the [LVT’s] decision which supports the contention that irrelevant considerations [were] taken into account”.

The s.47 point is, I think, of greater practical relevance than the second. It is easy to overlook s.47. As I have noted before, it is one of those rare statutory provisions which can operate retrospectively.

The further effect of the section is that, if the landlord is resident outside the jurisdiction, a tenant must be furnished with two names and addresses: first, the name and address of the landlord outside the jurisdiction, and second, an address for the service of notices within the jurisdiction.

I will finish with a brief word on the LVT’s resolution of the factual dispute. The Lands Chamber will only interfere with an LVT’s conclusions on questions of fact on limited grounds. Those grounds are contained in paragraph 4.2 of the Practice Directions for the Lands Chamber of the Upper Tribunal, which, broadly, as regards the LVT’s factual findings, require an appellant to show that the LVT took account of irrelevant considerations, or failed to take account of relevant consideration or evidence, or there was a substantial procedural defect.