Consultation of tenants
Section 20 and the subsequent sections of the Landlord and Tenant Act 1985 (as amended) contain detailed provisions requiring the landlord to carry out consultations with the tenants when planning to carry out major works.
These are supplemented by the Service Charges (Consultation Requirements) (England) Regulations 2003; The Service Charges (Consultation Requirements) (Amendment) (No. 2) (England) Regulations 2004. For the Welsh regulations click here
The consultation requirements in respect of qualifying long-term agreements do not apply to agreements entered into in relation to buildings which have not yet been constructed or which are not let at the time of the agreement. (BDW Trading Ltd v South Anglia Housing Ltd ).
Repeat of stage two?
 EWCA Civ 840
When determining whether a landlord should repeat stage two of the consultation process concerning qualifying works under the Service Charges (Consultation Requirements) (England) Regulations 2003, the test was whether the tenants had been given sufficient information by the first set of estimates of the cost of proposed works, and if obtaining fresh estimates was likely to increase the protection afforded by the consultation process.
Qualifying Long-term Agreements
Date of commencement of agreement
 UKUT 290 (LC)
A contract between a landlord and a managing agent was found to have come into existence when the performance of management services commenced, and not on the date of the landlord’s payment for the services provided. In the circumstances, the particular contract was a qualifying long-term agreement and the statutory consultation requirements under s20 of the Landlord and Tenant Act 1985 were applicable.
A draft contract between the landlord and the managing agent was drawn up on 12 June 2017 with its terms largely agreed. The agreement was never signed. Notwithstanding this, the managing agent commenced the provision of its services on 12 June 2017 and the landlord did not take any steps to prevent the performance of the agreement. The first payment for the provision of services was made around 27 June 2017.
The Tribunal held that the contract between the agent and the landlord was, in the absence of a signed written contract, an oral contract evidenced by both performance and payment. The Tribunal purported to apply the case of Brogden v Metropolitan Railway Co (1877) 2 App. Cas. 666 held that such a contract could not come into being until a payment had been made. Seeing as payment was not made until 27 June 2017, the agreement was not for a period of 12 months or more and therefore was not a qualifying long-term arrangement.
The issue on appeal was when the contract between the agent and the landlord took effect and whether, therefore, it was a qualifying long-term agreement?
Decision on appeal
The upshot of the proceedings before Tribunal was that it was admitted that:
- There was a contract between the landlord and the managing agent, and
- That services were provided from 12 June 2017 onwards.
The Upper Tribunal found that the only realistic finding open to the Tribunal on the terms of the engagement was that it was as per the draft unsigned agreement.
This left one issue to determine on appeal: at what date did the contract take effect? The Judge reviewed the decision in Brogden. She considered, quite correctly, that this decision was not authority for the proposition that, in a contract by performance, payment is necessary for a contract to arise. Brogden is simply authority for the proposition that a contract may arise by performance in the absence of a formally signed agreement.
The performance relied on in Brogden was the supply of coal. By merely accepting the deliveries of coal, the purchasing railway company accepted the terms of the contract as amended by the coal supplier. No reference is made in that judgment as to when the coal was paid for. The contract therefore came into being when the coal was accepted. The date of payment was not relevant. The Judge applied this reappraised ratio to the facts of the instant case and allowed the appeal. The contract came into being from the date of performance of the agents’ management functions under the drafted contract. The date of payment for those services was irrelevant. The management agreement therefore lasted 12 months and was therefore a Qualifying Long-term Agreement.
This case does not contain any new principles of law, but it demonstrates the application of the rules of the law of contract in the context of the provision of services. The decision also provides clarification that the payment of a fee is not necessarily required for a contract to arise by the conduct of the parties.
The fact that one party has provided their services as discussed between the parties and the other party has accepted the provision of services is likely to be enough for the contract to arise at the date of first supply. This rule is useful for those considering the length of engagement.
It is not always formal signing of a contract or indeed payment of monetary consideration that forms a contract. In many circumstances a supply contract can come into being without a signed agreement or payment, when one party begins to perform the contract as envisaged and the other allows him to do so.
The date of performance and not the date of payment will nearly always be the crucial date when considering when a contractual relationship began.
Dispensing with consultation requirements
Prejudice to the tenants flowing from the failure to consult
Dispensation on terms
 UKSC 14
The landlord had not followed all the stages of the correct procedure to consult with tenants prior to imposing service charges. By a majority the Supreme Court (overruling the decisions of all lower Courts and tribunals) granted the landlord dispensation on terms.
There is no justification for treating consultation or transparency as appropriate ends in themselves. The sole question for the LVT when considering how to exercise its jurisdiction in accordance with section 20ZA(1) is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.
The financial consequences to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor. In this very important case the Supreme Court went on to give guidance on a number of matters that arise in these cases.
The landlord (L) was the freehold owner of a building comprised of shops and seven flats, five of which were held by the tenants (Ts) under long leases, which provided for the payment of service charges. L gave Ts notice of its intention to carry out major works to the building and appointed a firm of surveyors (REA), at the tenants’ request, to prepare a revised specification of works and act as contract administrator. Four tenants nominated Rosewood Building Contractors (Rosewood) as their preferred contractor.
L obtained four priced tenders for the work and instructed REA to prepare a tender report. The report stated that the choice was between Rosewood and Mitre (L’s preferred contractor). L gave Ts a copy of Mitre’s tender and the tender report and the Ts requested copies of the other tenders; they particularly wanted to see Rosewood’s tender.
The tenants then issued an application under s27A of the Landlord and Tenant Act 1985 for a determination, inter alia, that the consultation process had not been complied with and that the cost of the major works was not reasonable.
L served a stage 2 notice which stated that the end of the relevant period for making observations was 31 August 2006. At a pre-trial review in the LVT proceedings on 8 August 2006 (i.e. before the end of the relevant period), L’s representative stated that the contract had already been awarded to Mitre.
The LVT found that it was futile for Ts to make further observations and that L had failed to comply with the Consultation Requirements. The tenants’ contribution to the cost of the works (which was around £280,000 under the terms of their leases) was capped at £1,250 (£250 each). L applied for dispensation pursuant to s20ZA(1) of the Landlord and Tenant Act 1985. It argued, inter alia:
- That the failure to comply with the Consultation Requirements had not caused the tenants to suffer significant prejudice;
- That the financial consequences on L of not granting dispensation was a relevant factor; and
- The offer to compensate Ts for any prejudice by reducing the cost of the works by £50,000 was also relevant.
At the dispensation hearing, Ts were unable to identify what comments they would have made had they seen the Rosewood tender.
Issues for Supreme Court
In the Supreme Court, Lord Neuberger identified three questions of principle:
- The proper approach to be adopted on an application under s20ZA(1) to dispense with compliance with the Requirements;
- Whether the LVT had to either refuse or allow such an application, or whether it could grant a dispensation on terms;
- The approach to be adopted when prejudice is alleged by tenants owing to the landlord's failure to comply with the requirements.
By a majority (3:2) the Supreme Court overruled the decisions of all lower courts and tribunals and granted L dispensation on terms, which included the discount of £50,000 offered by L. Lord Neuberger gave the leading judgment.
Issue: proper approach to dispensation
The Court held that sections 20 and 20ZA are intended to reinforce and to give practical effect to the purpose of s19(1), namely by ensuring that tenants of flats are not required to pay:
- More than they should for works/services which are necessary and are provided to an acceptable standard (19(1)(a)); and
- For unnecessary works/services or works/services which are provided to a defective standard (s.19(1)(b)).
There is no justification for treating consultation or transparency as appropriate ends in themselves (Lewison J. was wrong to so hold in Paddington Basin Developments Ltd v West End Quay Ltd  EWHC 833 (Ch),  1 WLR 2735). The main, indeed normally, the sole question for the LVT when considering how to exercise its jurisdiction in accordance with section 20ZA(1) is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.
The financial consequences to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.
It is not appropriate to distinguish between “a serious failing” and “a technical, minor or excusable oversight”, save in relation to the prejudice it causes.
Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements. The Court held that Grafton Way may have been rightly decided but, if so, it was for the wrong reasons.
Issue: conditional dispensation
The Court held that the LVT has power to grant a dispensation on such terms as it thinks fit, provided that any such terms are appropriate in their nature and their effect. Thus, the LVT can require a landlord to reduce the recoverable cost of the works by an amount equivalent to the additional cost of the works caused by the failure to comply with consultation requirements.
The LVT has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s application under section 20ZA(1).
Issue: approach to prejudice
The Court held that the legal burden of proof remains throughout on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants. The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant.
Lord Neuberger anticipated that LVTs will view tenants' arguments sympathetically, for instance by resolving in their favour any doubts as to whether the works would have cost less (or, for instance, that some of the works would not have been carried out or would have been carried out in a different way), if the tenants had been given a proper opportunity to make their points. The more flagrant the landlord's failure, the more readily an LVT would be likely to accept that the tenants had suffered prejudice.
Once the tenants had shown a credible case for prejudice, the LVT should look to the landlord to rebut it.
Many landlords will welcome this decision. Dispensation is likely to be granted in far more cases, albeit on terms. Landlords are likely to have to pay their own costs of the application for dispensation and the tenants’ reasonable costs in so far as they reasonably tested its claim for a dispensation and reasonably canvassed any relevant prejudice which they might suffer but it is difficult to envisage many situations whereby a tenant’s contribution to the cost of major works will be capped at £250.
Tenants will be able to identify what they would have said with the benefit of hindsight and assisted by a surveyor. If and to the extent that tenants establish relevant (financial) prejudice, dispensation is likely to be granted on condition that the recoverable costs are reduced to compensate such prejudice.
Costs following decision on dispensation
Daejan Investments Ltd v Benson
 UKSC 54
The Supreme Court considered the terms of orders as to costs and other issues following its earlier decision to allow a landlord dispensation from consultation requirements so as to be able to recover service charges.
Both parties agreed that the Supreme Court’s judgment required the landlord (L) to pay the tenants’ (Ts’) costs of the dispensation hearing. The parties disputed the wording of the condition to be included in the court’s order:
- L argued that the Ts were only entitled to their costs in the LVT “insofar as those costs were incurred in reasonably testing the landlord’s claim for dispensation or in reasonably canvassing any prejudice which the tenants might suffer”.
- Ts submitted that their costs should be recoverable from L insofar as they were incurred “in reasonably investigating and establishing non-compliance with the Regulations, investigating or seeking to establish prejudice, and investigating and challenging the landlord’s application for dispensation.”
The Supreme Court preferred the tenants’ (wider) formulation and clarified that the landlord was required to pay the tenants’ costs in reasonably investigating and establishing non-compliance with the consultation requirements as a condition of dispensation, even though these costs were incurred in earlier separate proceedings.
The Supreme Court also clarified that the landlord should be prevented from recovering its costs in resisting a determination that it failed to comply with the consultation requirements as a condition of dispensation. Notwithstanding these conditions, it was also appropriate to make an order pursuant to s20C of the Landlord and Tenant Act 1985 (i.e. that these are not to be regarded as relevant costs to be taken into account in determining the amount of any service charge).
As regards the effective date of dispensation, the Supreme Court held that dispensation will take effect once all conditions subject to which the dispensation is granted have been determined (and, where appropriate, satisfied). This may be important for the purpose of determining when interest on the late payment of service charges becomes payable.
The Court’s Order is likely to be used by parties and tribunals as a precedent as to how to give effect to decisions granting dispensation on conditions.