![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Lands Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Brent v Hamilton [2006] EWLands LRX_51_2005 (23 October 2006) URL: https://www.bailii.org/ew/cases/EWLands/2006/LRX_51_2005.html Cite as: [2006] EWLands LRX_51_2005 |
[New search] [View without highlighting] [Printable RTF version] [Help]
Brent v Hamilton [2006] EWLands LRX_51_2005 (23 October 2006)
LRX/51/2005
LANDS TRIBUNAL ACT 1949
LANDLORD AND TENANANT – service charges – liability – lease granted under Right to Buy legislation – whether lessee liable for management costs incurred in providing services – held lessee liable
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE LEASEHOLD
VALUATION TRIBUNAL FOR THE LONDON RENT ASSESSMENT PANEL
BETWEEN LONDON BOROUGH OF BRENT Appellant
and
MRS NELLIE HAMILTON Respondent
Re: 66 Mead Court
Buck Lane
Kingsbury
London NW9
Before: The President
Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL
on 17 October 2006
Stan Gallagher instructed by Arnold Meagher, Legal and Democratic Services, Brent London Borough Council for the appellant
Andrew Allen instructed through the Bar Pro Bono Unit for the respondent
The following cases are referred to in this decision:
Capital & Counties Freehold Equity Trust Ltd v BL plc [1987] 2 EGLR 49
Embassy Court Residents' Association v Lipman (1984) 271 EG 545
Gilje v Charlegrove Securities Ltd [2002] 1 EGLR 41
The following further cases were cited in argument:
St Mary's Mansions Ltd v Limegate Investment Co Ltd [2003] 1 EGLR 41
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Liverpool City Council v Irwin [1977] AC 239
Lloyds Bank plc v Bowker Orford [1992] 2 EGLR 44
DECISION
1) Peaceful enjoyment;
2) Repair of the building of which the flat forms part;
3) Repair of other property over which the lessee has rights under the lease;
4) Painting the outside and common parts of the building;
5) Provision of services;
6) Insurance;
7) Procuring observance of the other lessees' covenants if so required by the lessee.
"(5) To provide such of the following services to or for the benefit of the flat as are enjoyed by the Lessee and provided by the Council at the date hereof (save that nothing herein shall prejudice the right of the Council in its absolute discretion during the term hereby granted to provide to or for the benefit of the Flat any service not presently enjoyed by the Lessee) and to ensure so far as practicable that they are maintained at a reasonable level and to keep in repair any installation connected with the provision of those services namely:-
(a) In the building
i. Hot water supply
ii. Central heating
iii. Window cleaning
iv. Lift(s)
v. Lighting cleaning carpeting and maintenance of common parts
vi. Collection and/or disposal of refuse
vii. Entry-phone system
viii. Common television aerial and/or landline
ix. Laundry and drying-room facilities
x. Pumped domestic water supply
xi. Mechanical ventilation
(b) On the Estate (or if the Building is not part of an estate then n relation to its grounds and apparent areas)
i. Lighting cleaning maintenance and removal of (estate) roads paths car parks forecourts or other common parts
ii. Lighting cleaning and maintenance of gardens or recreation areas
iii. Maintenance and renewal of boundary fences and walls
iv. Provision of caretakers or other necessary employees or agents
v. Clubroom facilities
(6) To insure the Flat to the full insurable value thereof against destruction or damage by fire tempest flood and other risks against which it is normal practice to insure and in the event of destruction or damage by any such risk as aforesaid to rebuild or reinstate the Flat and the Building."
"Further, although the Tribunal has felt considerable concern about the quality of management operations in relation to Mead Court, so that it would have considered whether a reduction in charges would have been appropriate, it has reached its decision to disallow Management Fees altogether for a different reason which was raised at the Hearing. This reason is that the Lease contains no provision entitling the Lessor to charge the Lessee, as it has sought to, a management fee of 15% of other expenditure. It might be arguable that the Lessor's obligation under the Lease (Clause 6) as to repairs, decorations and services necessarily require expenditure on management which would come within the service charge payable (Clause 4(A)). However, the Tribunal saw no evidence justifying or quantifying any actual expenditure incurred by the Lessor and the charge itself did not purport to be anything other than a unilaterally imposed percentage fee. As a matter of established principle, the Lessor cannot recover money from the Lessee in the absence of clear contractual provisions entitling it to do so (see Gilje v Charlegrove Securities Ltd [2001] EWCA Civ 1777 and also Embassy Court v Lipman (1984) 271 EG 545). This means that the Tribunal has determined to deduct from the four service charge totals the following sums: £359.96, £63.40, £75.95 and £72.26 respectively."
"If any dispute or difference shall arise between the Council and the Lessee concerning the determination in a particular manner or on particular evidence of any question whether any amount payable before costs for services repair maintenance insurance or management are incurred is reasonable whether such costs were reasonably incurred or whether services or works for which costs are incurred are of a reasonable standard them and in every such case the dispute or difference shall be referred in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force to the determination of a single arbitrator to be agreed upon by the Council and the Lessee or failing agreement to a person nominated by the President for the time being of the Royal Institution of Chartered Surveyors."
"No doubt in the case of leases entered into between a landlord and tenant it is necessary for the landlord to spell out specifically in the terms of the lease, and in some detail, a sufficient description of every financial obligation imposed upon the tenant in addition to the tenant's obligation for rent…"
And at 64F he said:
"… If I am right in holding that the judge was correct in his views, as a matter of construction, that it was open to the Resident's Association Ltd to incur administrative expenditure and to recover it, is there any difficulty arising from the fact that, when the work reached the peak that it did in 1980 or 1981, the Association should decide to employ managing agents? Again, it is perfectly clear that if an individual landlord wants to do that and to recover the costs from the lessee, he must include explicit provisions in his lease…"
" …The landlord seeks to recover money from the tenant. On ordinary principles there must be clear terms in the contractual provisions said to entitle him to do so. The lease, moreover was drafted, or proffered, by the landlord. It falls to be construed contra proferentem…"
"5(1) A contract term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
5(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
Under regulation 8 an unfair term is not binding on the consumer.
Dated 23 October 2006
George Bartlett QC, President