LEASEHOLD
VALUATION TRIBUNAL
LANDLORD AND TENANT
ACT 1985 SECTION 27A
Flats 14 &
Ref: LON/00AC/LSC/2009/0555 & 0707
___________________________________________________________________________
Pledream Properties Limited Applicant
Ms Z Dougekou (14) & Mr M Flint (16) Respondents
Dates of hearing: 28 January & 15 March 2010
Tribunal: Mr
M Martynski (Solicitor)
Mr P Tobin FRICS MCIArb
Mrs
L West JP MBA
Appearances: Mr M Baumohl (Counsel for the
Applicant)
Mr Brueton
(on behalf of Ms Dougekou)
Ms
Dougekou
DECISION
Decision
summary
1.
Of
the sums claimed, the following amounts are not payable by the Respondents:-
Cleaning: £381.25 (for
each Respondent)[1]
Window cleaning: £85.35 (for each
Respondent)[2]
Management charges: £85.02 (for each Respondent)[3]
Miscellaneous charges: £209.57 (for each Respondent)[4]
2.
The
Tribunal orders that 40% of the Applicant’s costs of proceedings before the
Tribunal are not payable by the Respondents.
3.
The
Respondents are each to pay to the Applicant the sum of £75.00 in respect of
the hearing fee.
Background
4.
The
Building in question is a 1930’s style block consisting of four storeys
containing 20 flats.
5.
In
these proceedings, the Tribunal is dealing with two actions from the Edmonton
County Court transferred to the Tribunal by orders of District Judge Silverman
dated 18 August 2009 (in respect of Mr Flint) and 26 October 2009 (in respect
of Ms Dougekou).
6.
The
claim against Mr Flint is for the sum of £2,395.90 being service charges
claimed up to 24 December 2007. The claim against Ms Dougekou is for the sum of
£3,621.80 also being service charges claimed up to 24 December 2007.
7.
At
the final hearing before the Tribunal, Mr Brueton, who is Ms Dougekou’s partner
and who has been resident at her flat at all material times, sought to
represent Mr Flint. Mr Flint did not attend the hearing. The Tribunal was told
that he was abroad, he had not sought an adjournment of the hearing on this
basis. The Tribunal did not allow Mr Brueton to represent Mr Flint. The
Tribunal dealt with the case on the basis that it took into account the issues
raised by Mr Flint in his defence and on the basis that he adopted any further
points made by Ms Dougekou and Mr Brueton where those points were applicable to
him.
8.
The
Applicant then made further representations in writing dated 17 March
2010. Ms Dougekou responded to these
representations in a letter dated 25 March 2010. The Applicant’s further
representations dated 17 March contained a number of references to a wish to
present yet further submissions and evidence. The Tribunal in making its
decision has only taken account of the representations made at the hearing and
the additional written representations referred to above. The Applicant has had
an adequate opportunity of presenting its case and the Tribunal is not prepared
to extend the time for representations any further.
The
issues and the Tribunal’s decision
9.
All
the issues in dispute were identified at the outset of the hearing. It was
agreed between the parties that the issues raised all related to the sums
claimed in the County Court proceedings and that accordingly, any sums found
not payable by the Tribunal would be deducted directly from the sums claimed in
the court proceedings.
Fire alarm
10.
Although
this had been raised as an issue by Ms Dougekou, it was not pursued by her at
the hearing. The issue had also been raised by Mr Flint in his defence. The
complaint was that the fire alarm system at the building was second hand when
installed and was constantly malfunctioning. In response the Applicant stated
that the system had been inspected and had been confirmed, by the specialist
contractors, that it was in working order.
The fire alarm would operate correctly in the event of a fire despite
the error messages displayed on the control box at the entrance to the block.
11.
In
the circumstances, the Tribunal finds that the installation/maintenance/call
out charges in respect of this item were reasonably incurred.
Cleaning
12.
These
charges were:-
2005: £3085
2006: £3771
2007: £3109
The charges break down
at a range of approximately £59-72 per week.
13.
The
evidence for the Applicant in respect of these charges consisted solely of some
computer print-outs for the period December 2004 to December 2007[5]
and indicated that one man hour per week was the weekly input into the
building. There was no other evidence as to the amount of cleaning done such as
attendance sheets or other records. No explanation was forthcoming as to why,
when the only evidence was of one hour’s cleaning per week, the weekly charge
for cleaning was so high.
14.
The
Respondents and Mr Brueton complained about the cleaning. They claimed that
there was little cleaning done and that at best there was irregular vacuuming
of the common parts. There was evidence that complaints had been made (and that
these complaints had been answered by the managing agents).
15.
On
the evidence before it, the Tribunal can only conclude that cleaning charges in
issue have not been reasonably incurred insofar as they exceed one hour per
week. In the Tribunal’s experience, cleaning services could be procured for
£15.00 per hour which at one hour per week gives an annual charge of £780[6].
Window cleaning
16.
These
charges were:-
2005: £564
2006: £564
2007: £579
17.
Invoices
for the window cleaning charges were available at the hearing. There wasn’t any
other documentation in respect of this item such as a contract or service level
agreement or notes of inspection to check on the cleaning. Ms Mutevelian from
the managing agents said that she had inspected the windows monthly from when
she took over responsibility for the building which she believed was around
October 2007 (which is near the end of the period covered by the disputed
charges – 2005-7). She told the Tribunal that she had spoken to a manager at
GOL, the contractor to whom payments were made, and that he had confirmed that
the windows had been cleaned (although he did not carry out the cleaning
himself and it is not clear where he got his information from or what period he
was referring to). The Tribunal was referred to a letter dated 23 October 2007
written by Ms Mutevelian to Ms Dougekou in which it was stated that GOL were
not contracted to carry out window cleaning at the building (which Ms Mutevelian
agreed in the hearing was a mistake).
18.
So
far as the Respondents and Mr Brueton were concerned, there simply was no
cleaning of the windows at the time. There was evidence by way of emails that
there was dissatisfaction on the part Mr Brueton and Ms Dougekou regarding the
issue in 2006.
19.
On
the basis of the evidence before it, the Tribunal accepts the Respondents’
accounts and finds that the evidence presented by the Applicant on this issue
does not show, in the face of what is said by the Respondents, that the
cleaning was carried out. Accordingly none of the charges are payable.
Drain clearance/cleaning/investigation
£3585.55
20.
The
Respondents’ objections on this issue were based on the recent history of the
refurbishment of the building. In 2003 there had been a very serious fire at
the building resulting in the need for all tenants to move out of the building
whilst it was substantially repaired and refurbished. Given this, there should
not have been the need to carry out repairs or works to the drains.
Accordingly, any such expenditure was unreasonable.
21.
The
Tribunal rejects this contention. There is no indication that the drainage
system required repair or replacement as a result of the fire. Further, the
evidence as to the various drainage works done, whilst not comprehensive,
suggests that the problems being dealt with were problems that could not have
been avoided prior to them occurring.
Drainage charges are therefore reasonable and payable.
22.
The
Respondents were of the view that there were too few communal dustbins at the
building (3) for the number of flats there. As a result, domestic waste was
left/spilled out of the bins and attracted rats. Mr Brueton pointed to the
block of flats next door to the subject building and made the point that the
ratio of dustbins to flats there was much greater than it was at the subject
building. Money had been spent on pest control that would have been better
spent on the purchase of extra dustbins (at least to see if the provision of
extra dustbins resolved the problem with rats in respect of which the pest
control company had been called in to deal with). Mr Brueton said that neither
he nor Ms Dougekou had ever seen evidence of a problem with rats. The Tribunal
was shown a photograph of the communal bins taken just after Christmas 2002
which showed full and overflowing bins.
23.
Again,
the Tribunal rejects the Respondents’ objection to this item. There is no
evidence to suggest that the rat infestation is connected directly with the
issue of the dustbins. No evidence was presented to the Tribunal as to the
proper ratio between the cubic capacity provided by communal dustbins and the
number of properties within a building.
Management fees
24.
These
charges were:-
2005: £5552
2006: £5552
2007: £5900
25.
It
was said by the Respondents that there had been a failure of management
generally. There is insufficient checking of services, inadequate consultation
with residents, poor control of contractors and inadequate responses to
complaints. The Tribunal was directed to correspondence between Mr Brueton/Ms
Dougekou and the managing agents on issues of cleaning, pest control and the
fire alarm.
26.
In
general, and for the period in question, the Tribunal did not find evidence of
overall poor management. The Tribunal accepts the point made by Counsel for the
Applicant that just because the Respondents were unhappy with the managing
agent’s approach on various issues, that did not mean that the management was
inadequate.
27.
There
were however, on the Tribunal’s own findings, clear management failures in
connection with the window cleaning and cleaning. No proper records were kept
or stored properly and there was no evidence that the cleaning was checked or
evidence of the cleaning done for the price paid. There was, from the letter
dated 23 October 2007 written by Ms Mutevelian, clear confusion over the
cleaning issues. There was also evidence
of either mischarging of other amounts or lack of records in respect of them[7].
To reflect that very specific failure, the Tribunal concludes that of the
management charges for the period in question should be reduced by 10%.[8]
28.
Of
the following invoices, the issues in respect of them were not raised by Mr
Flint in his defence in the court proceedings, they were however raised on
behalf of both Respondents in the schedule of objections completed for the
Tribunal proceedings.
Invoice J.G.Bell dated 6 January 2005 -
£88.13
29.
The
description for the work done on the invoice suggests, despite the further
submissions sent to the Tribunal after the hearing, that it was done for the
sole benefit of an individual leaseholder and accordingly the cost should not
have been put on the service charge.
Invoices D
N Carpentry dated 13 April 2005 - £111.63 & £466.50
30.
The
objection to these invoices was that, given that the building had been
substantially refurbished only months before, works should not have been
required to the front entrance door and loose floorboards. Alternatively, the
work should have been covered under snagging arrangements with the contractors
who carried out the works. Notwithstanding the further representations made
after the hearing a survey ought to have revealed the need for these works
before the end of the snagging period and the Tribunal finds that the cost is
not reasonably incurred.
Invoices
of Home and Commercial Property Services dated 30 November 2005 and 26 January
2006 - £900.00 & £506.00
31.
This work concerned decorations to flat 4 and
areas outside flats 4 and 5. Despite the
further representations, the invoices do not make it clear where the work was
done and why it was necessary or should be charged to the service charge. In
the absence of proper information the cost is found not to be reasonably
incurred.
Invoices
of Abbotts Guttering dated 20 September, 24 November 2005 & 23 November
2006 - £365.00, £525.00 & £120.00
32.
The
work covered by the first invoice concerned replacing hopper heads. It was said
by the Applicant that the heads were too small and that they needed to be
replaced. The Tribunal considers that the need for larger hopper heads ought to
have been anticipated and so the costs incurred are not reasonable. The latter
two invoices were conceded by Ms Dougekou.
Invoice of
Abbotts Guttering dated 7 December 2005 – £70.00
33.
The
Applicant could not explain what this invoice was for and accordingly cannot
show that the sum was reasonably incurred and it is not payable.
Invoices
of IMS Limited dated 17 March 2005 - £793.13 and £1,227.88 and 12 December 2006
- £452.38
34.
The
first two invoices (as per the evidence presented to the Tribunal) were for
works to an elderberry bush and the pruning of privet hedges. In the Tribunal’s
experience, and from its inspection, the Tribunal’s view is that the cost as
set out in the invoices is far too high for the work claimed by the
Applicant. A reasonable figure for this
work is £1212.00.
35.
The
third invoice was in respect of picking up fallen large branches from a tree on
neighbouring land that overhung the garden of the subject building and for
trimming some branches still left on the tree. There was no explanation as to
why the neighbouring owner had not been approached and asked to deal with the
overhanging branches other than it was felt that the work had to be urgently
done. The Tribunal’s view is that it would have been a reasonable course of
action to have first of all asked the neighbouring landowner to deal with the
matter before incurring the expense of pruning. The Tribunal allows the sum of
£117.50 (inc VAT) for the picking up of branches.
Invoice of
Freeman, Dawson & Co dated 15 December 2004 - £117.50
36.
This
was a survey fee relating to flat 5. This did not relate common parts and it
cannot be justified as being part of the service charge and so is not payable
by the Respondents.
Invoice of
DN Carpentry dated 28 February 2006 - £323.13
37.
There
was no evidence in respect of what work was done and so it is not payable by
the Respondents.
Invoice of
Franchi dated 2 May 2006 - £99.66
38.
This
was for a lock to the store room at the base of the stairs. The Applicant
maintained that this room was an electrical intake room but then in further
submissions stated that it thought
the room was used to store cleaning materials although further time to
investigate was requested. Mr Brueton said it was not, it was a room not
available to lessees and so any expenditure on it should not fall to the
service charge. The Tribunal preferred the evidence of Mr Brueton on this point
and this sum is not payable.
Invoices
of 1st Metro dated 16 November 2005, 16 December 2005, 9 January
2006 and 5 November 2007 - £176.25, £182.13,
£146.88 & £115.15
39.
The
Tribunal rejects the Respondents’ objections to the first three invoices that
the works were self evidently not done properly because works had to be done on
three occasions and that the doors were not fitted properly in the first place
or not the correct size. The works done are clear and there is no evidence that
they were not done properly. As to the fourth invoice there was no evidence to
suggest that this work was not reasonably done. These sums are payable.
Tribunal
fee dated 18 May 2006 - £350.00
40.
This
fee was incurred in an application to the Tribunal (which has been reviewed by
the Tribunal) where the Applicant was successful and no order was made
preventing costs being placed on the service charge. It is therefore payable.
Invoices
of S.C.
41.
The
invoices were for investigations and works into damp ingress to flat 5. Mr
Brueton conceded these invoices up to 40%.
In further submissions to the Tribunal it was confirmed that these works
were due to water penetration through the exterior of the building. The
Tribunal concludes that the sums are therefore payable.
Invoice of
Sier Group Limited dated 19 June 2007 - £517.00
42.
This
was for an emergency call out to a mains water pipe. It was questioned why this was not claimed on
insurance or not paid by the leaseholder of flat 2. However the Tribunal
accepts the Applicant’s case on this issue that the leak was not covered by
insurance and that the leak was from a mains and so payable via the service
charge.
Invoice of
Keymakers dated 8 May 2007 - £105.75
43.
There
was no evidence to suggest that this work was unreasonably carried out and so
is payable.
Invoice of
Peter Scott & Associates dated 26 March 2007 - £564.00
44.
This
concerned investigations into damp at flats 3 and 5. It was confirmed by the
Applicant that this work was investigating penetrating damp and so would appear
to be properly charged to the service charge and is accordingly payable.
Issues
raised specifically by Mr Flint
45.
Mr
Flint, in his defence to the County Court proceedings complained that the
floorboards had not properly been restored to their original condition after
the fire. He also complained that communal double glazed units had been leaking
since 2005 and had an issue concerning a faulty lock on the communal doors.
These issues could only go to the management of the building and the Tribunal
does not feel the need to add anything further to what has been said on that
issue given that Mr Flint was not at the hearing and not therefore in a
position to pursue these issues in more detail. As to the floorboards in the
communal parts, the Tribunal was satisfied that the managing agents had
consulted leaseholders regarding options as to how to deal with them.
46.
Mr
Flint’s defence also raised an issue about a tree felled in the communal
garden, however no charges for any such item were raised in the period under
consideration.
Costs and
fees
Costs
47.
Mr
Brueton asked the Tribunal to make an order restricting the Applicant’s costs
of the Tribunal proceedings that could be placed on the service charge pursuant
to section 20C Landlord and Tenant Act 1985. Section 20C provides as follows;
20C Limitation of service charges: costs of proceedings
(1) A tenant may make an
application for an order that all or any of the costs incurred, or to be
incurred, by the landlord in connection with proceedings before a court,
residential property tribunal or leasehold valuation tribunal, or the Lands
Tribunal, or in connection with arbitration proceedings, are not to be regarded
as relevant costs to be taken into account in determining the amount of any
service charge payable by the tenant or any other person or persons specified
in the application.
(2) The application
shall be made—
(a) in the case of court
proceedings, to the court before which the proceedings are taking place or, if
the application is made after the proceedings are concluded, to a county court;
(aa) in the case of
proceedings before a residential property tribunal, to a leasehold valuation
tribunal;
(b) in the case of
proceedings before a leasehold valuation tribunal, to the tribunal before which
the proceedings are taking place or, if the application is made after the
proceedings are concluded, to any leasehold valuation tribunal;
(c) in the case of
proceedings before the Lands Tribunal, to the tribunal;
(d) in the case of
arbitration proceedings, to the arbitral tribunal or, if the application is
made after the proceedings are concluded, to a county court.
(3) The court or
tribunal to which the application is made may make such order on the
application as it considers just and equitable in the circumstances.
48.
Looking
at the cases in terms of winning and losing, the Applicant has been generally
more successful that the Respondents on the larger recurring items. On the
items raised on the individual invoices, the Respondents were more successful.
Looking at the matter in terms of the amounts of the claims in the County
Court, so far as the Tribunal is concerned, the Respondents have only succeeded
in convincing the Tribunal that a relatively small portion of the sums claimed
are not payable (Mr Flint 31% of the sum claimed, Ms Dougekou 21 %). Looking at the matter yet another way, taking
the approximate value of all the items raised by the Respondents, they were
successful to the tune of around 34% of total value.
49.
In
the circumstances, it is right that an order under section 20C is made to
reflect the fact that some of the Respondents’ complaints have been upheld. It
would be wrong however to deny the Applicant all of its costs given that in
order to pursue its case (on which it has succeeded in the main) it has been
put to the cost of coming to the Tribunal.
50.
The
Tribunal orders that 35% of the costs incurred by the
Applicant in connection with proceedings before the Tribunal are not to be
regarded as relevant costs to be taken into account in determining the amount
of any service charge payable by the Respondents.
Fees
51.
As
to the fees paid to the Tribunal by the Applicant of £150.00, these fees would
have been payable even if the Applicant had only claimed the sums on which it
has been successful. Accordingly the Tribunal orders the Respondents to pay
£75.00 each to the Applicant in respect of these fees.
Mark Martynski –
Tribunal Chairman
30 April 2010