ASTER COMMUNITIES v KERRY CHAPMAN AND OTHERS  UKUT 0177 (LC)
See the full judgment here:
The Upper Tribunal (Lands Chamber) (“UT”) confirms the First-Tier Tribunal’s (“FTT”) discretion in granting dispensation of the statutory service charge consultation requirements, to Landlords subject to conditions.
Aster Communities (“Aster”) applied for dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“Act”) concerning the replacement of the balcony asphalt at Saxon, Stuart, Tudor and York Courts in Andover Hampshire in February 2019.
The application to dispense was opposed by some 41 lessees who were represented by Talbot Walker LLP. The FTT granted Aster dispensation of the consultation requirements in May 2019 subject to the conditions that Aster is to pay the reasonable costs of an expert nominated by the lessees in connection with the balcony asphalt at the main blocks, Aster is to pay the lessee’s reasonable costs and finally that Aster could not recover its legal costs in the service charge from the lessees.
Aster appealed to the UT contending that the FTT was wrong to impose conditions 1 and 2 above citing the leading case on the matter Daejan Investments Ltd v Benson  UKSC 14, stating that the FTT had flipped the burden of relevant prejudice onto the landlord where the burden lies with the tenant for the landlord to then rebut it.
It was the case of the lessees that the scope for appellate intervention was limited and that the FTT had the advantage of seeing the parties and witnesses and appellate courts should be discouraged from substituting their discretion for that of the FTT “by a narrow textual analysis which enables them to claim that he misdirected himself”.
His Honour Judge Stuart Bridge expressed disagreement to the arguments put forward by Aster “The landlord [Aster] 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.”
Summarising HH Judge Stuart Bridge held that out of respect of the FTT’s expertise he did not consider it the duty of the UT to interfere with the decision made by the FTT and the appeal would be dismissed.
This decision shows not only the wide powers of the FTT to impose conditions on dispensation but also that the FTT will seek to do justice by tenants and view them sympathetically especially where a landlord as large as Aster has failed to carry out the service charge consultation requirements imposed by statute.
Whether you are landlord concerned about your obligations in respect of service charges or you are a tenant who thinks that the service charge you are being asked to pay is unfair, please contact Talbot Walker in Hampshire and we will be happy to assist.
Please contact Robert Hurst on 01264 721 787 or firstname.lastname@example.org