1 Residential Property TRIBUNAL SERVICE Case Number: CHI/00HG/LIS/2010/0099 RESIDENTIAL PROPERTY TRIBUNAL SERVICE SOUTHERN LEASEHOLD VALUATION TRIBUNAL PROPERTY: Flat C, 35 Headland Park, North Hill, Plymouth, Devon, PL4 8HS Applicant: Plymouth Land Management Company and Respondents: BL and CE Walton In The Matter Of Section 168(4) Commonhold and Leasehold Reform Act 2002 Tribunal Mr A Cresswell (Chairman) Mr E G Harrison FRICS Date of Hearing: 4 March 2011 Representation: Mrs A Knapper, solicitor, appeared for the Applicant. There was no appearance by or on behalf of the Respondents, but we were satisfied that they
2 were aware of the hearing because there had been oral communication with our clerk. DETERMINATION The Application On 3 December 2010, 35 Headland Park Management Co Ltd made an application on behalf of the Applicant freeholder of the property to the Leasehold Valuation Tribunal for the determination of whether there has been a breach of covenant by the lessee, the Respondents. Preliminary Issues The lease supplied by the Applicant is a lease between Frank Wotton and Gary Robert Pethick and is dated 6 July 1990 for a term of 99 years commencing on 24 April It is clear from official copies of the registry that the Applicant is the landlord/lessor and the Respondent the tenant/lessee of Flat C 35 Headland Park, Plymouth, and that the original lease dated 6 July 1990 is the contract between the parties, and contains the covenants and conditions of that contract. Inspection and Description of Property 3. The Tribunal inspected the property on 4 March 2011 at 10am. Present at that time were Mrs Knapper and Ms Catherin Hignell, owner of the leasehold interest in Flat Headland Park (first floor). The property in question consists of the second floor of the building at 35 Headland Park, which is a self-contained flat, there being self-contained flats also on the ground and first floor. 4. We had been supplied with photographs of the building in.a submission by the Applicant, and saw for ourselves that there was both external and internal damage.
3 5. At the head of the half landing leading to the property, there was a broken window. The stairs above the half landing were littered with rubble and dust and 4 sheets of plasterboard and 8 sheets of plywood. Within the property, there was only the shell of what had once been a living space. Stud walls had been removed. Floorboards were damaged. The plasterboards and plaster had been removed from walls and ceiling. The bathroom had been partially "ripped out", with the boiler pulled from the wall so as to expose an open vent. Water and gas pipes appeared to have been capped and protruded from the flooring. There were bare wires and unattached wiring. The window to the front road was broken; the lintel had been chipped away; the window stood in a wooden frame separate from its original plaster frame, with gaps on 3 sides. The flat portion of the roof was leaking into the property. There was graffiti on a wall. The whole flat looked as though it had suffered blitz damage. 6. We then were shown flat B by Ms Hignell, who showed us where there had been flood damage in her hall and bedroom from a leak in the bathroom of Flat C. She showed us water damage in her living room from the ingress of water from the window described above as separate from its frame. She also showed us further damage, which is not relevant to this application. Summary Decision 7 This case arises out of the Landlord's application, made on 3 December 2010, for the determination of whether there has been a breach of covenant. The Tribunal has determined that the Landlord has demonstrated that there has been a breach of covenant. The breaches found are in respect of the covenants relating to the Tenant's duties detailed in Clause 2(3), (4), (7) and the Second Schedule paragraphs 3 and 7 of the lease. Directions 8. Directions were issued on 13 December 2010.
4 9. The Tribunal directed that the parties should submit specified documentation to the Tribunal for consideration. It was, in particular, provided that the parties should submit their Statements of Case. 10. This determination is made in the light of the documentation submitted in response to those directions by the Applicant, the Respondents having chosen to submit no documentation The Law 11. The relevant law is set out in section 168 Commonhold and Leasehold Reform Act Section 168(1) and (2) Commonhold and Leasehold Reform Act 2002 provide that a landlord may not serve a notice under Section 146 Law of Property Act 1925 in respect of a breach by a tenant of a covenant or condition in the lease unless it has been finally determined, on an application to the Leasehold Valuation Tribunal under Section 168(4) of the 2002 Act, that the breach has occurred. 13. A determination under Section 168(4) does not require the Tribunal to consider any issue relating to the forfeiture other than the question of whether a breach has occurred. The Tribunal's jurisdiction is limited to that question and cannot encompass claims outside that question, nor can it encompass a counterclaim by the Respondent; an application under Section 168(4) can be made only by a landlord, The Lease 14. The following are relevant Clauses of the Lease dated 6 July 1990: 2. The Tenant hereby covenants with the Landlord as follows:- (3) To keep the interior of Flat "C" and every part thereof in tenantable repair and properly cleansed throughout the term hereby granted and it is hereby agreed and declared that there is included in this covenant as
5 repairable by the Tenant (including replacement whenever such shall be necessary) the roof joists and timbers and the floors of and in Flat "C" and one half in depth of the joists or beams on which the said floors are laid and there are also included in the covenant the windows and doors and window and door frames of Flat "C" and the water and gas pipes electric cables conduits and drains and all doors cisterns and sanitary fittings and all services used exclusively in connection with Flat "C" (and for the purposes of such repairs the Tenant and his workmen shall have access to such pipes wires and other things where they are in upon or under other parts of the Building upon proper notice being given to the Landlord and the occupier thereof) (4) Not without previous consent in writing of the Landlord to make or permit to be made any alterations in the construction or arrangements of the Demised Premises nor cut alter injure any of the walls timbers ceilings floors doors or windows thereof (6) In every seventh year and in the year preceding the termination of the term hereby granted to paint with two coats of good quality paint and in a proper workmanlike manner all the internal wood iron stone and other work of Flat "C" which usually are or ought to be painted and at the time of every painting to distemper whiten decorate and colour all such parts of the interior of Flat "C" which usually are or ought to be so dealt with and to paper with suitable quality such parts thereon as are usually papered' (7) Not throughout the said term to use or occupy or permit to be used or occupied Flat "C" otherwise than as a single private residence and not to do or permit or suffer to be done on the Demised Premises any act or thing which may be or become a nuisance annoyance or inconvenience to the Landlord or Tenant or occupiers of other parts of the Building or the owners or lessees or occupiers of any adjoining or neighbouring flats or premises SECOND SCHEDULE 3. No Tenant shall in any way encumber or interfere with the access to or egress from or place or leave rubbish upon any part of the premises used in common with the other Tenants of the Building nor allow any cycle perambulator cart bathchair invalid carriage or other vehicle or thing or any goods or package belonging to him or his servants or agents to be placed or remain upon any part of the premises used in common with the other Tenants 7. No Tenant shall permit any water or liquid to soak through the floors and in the event of such happening he will without prejudice to the Landlord's rights under the Lease immediately rectify and make good all damage and injury to the premises so affected
6 The Applicant's Case 15. The Applicant submitted a Statement of Case and called evidence and made submissions. The Applicant relied upon Clauses 2(3), (4), (6) and (7) and the Second Schedule paragraphs 3 and 7 of the lease. During the course of the hearing, Mrs Knapper properly conceded that she could not show that there had been a breach of Clause 2(6). 16. We heard the very sad plight of Ms Hignell who, until she could bear it no longer, suffered as the lessee of the flat below the property. We had no reason to treat her as other than a wholly honest and decent person. We accept all of her evidence, supported as it was by our own observations. She told us that there had been many incidents. Of relevance to this application, and we summarise, she was a leaseholder for 18 years before the Respondents contributed to (others share their wrongs) what for her was a nightmare beginning some 4 years ago. 17. The Respondents sublet the property to tenants. About 4 years ago, Ms Hignell noticed a crack in the window we have described at the front of the property. Ms Hignell had just finished decorating her own flat, which began to suffer water damage to the ceiling of her living room. She saw the tenants, who told her to "f... off'. She phoned Reverend Walton, who told her that it was nothing to do with him. A botched job followed by then Applicant's agent. The water continued to enter Ms Hignell's flat. She herself paid for work to her own window, but the problem persisted. Reverend Walton again denied any liability. The leak continued. 18. Ms Hignell noticed, again about 4 years ago, water seeped into Ms Hignell's flat as a result of a leak from the toilet in the property. After 2 weeks, the leak was repaired by an agent of the Respondents. 19. New tenants in the property caused further nuisance to Ms Hignell some 3 years ago, but again the Reverend Walton refused to accept any responsibility.
7 20. About 18 months ago, the Respondents sublet to a man, and Ms Hignell understood that the arrangement was a nil rent on the basis of building work to the property by the man. It was this man who, apparently, was the person responsible for the destruction we observed. He clearly had no building skills whatsoever. Ms Hignell was then subjected to noise and dirt as this man set about his task. It was difficult and dangerous for her to approach him, given the fact that the staircase was strewn with rubbish and the rails were badly damaged. She had to regularly clean rubble and dust from the common staircase and even had to claim for a new staircase carpet on her insurance. 21. We saw a letter of 10 December 2010 from Reverend Walton to Mr Charles Knapper of the current managing agents. In that letter, the Reverend confirms the arrangement made with his latest tenant to "totally revamp" the flat for a rent-free occupancy, and that the man "tore out all the inside of the flat, and then disappeared". He said that he had been unable to enter the building after a lock change and could not afford to have the flat rebuilt. The Respondent's Case No case was submitted by the Respondents, who chose also not to attend the hearing. Consideration and Determination 26. The Tribunal finds it clear from examination of the lease that the Respondents are in substantial breach of their duty under Clause 2(3) to keep the interior of the property in tenantable repair and properly cleansed, given what we have detailed above; that they are in substantial breach also of other covenants as follows: Clause 2(4) is clearly breached given the substantial alterations without any permission from the Applicant landlord. Clause 2(7) is clearly breached as the Respondents have allowed a complete amateur to destroy the inside of the property, causing nuisance, annoyance and inconvenience to Ms Hignell by reason of noise, dirt and the creation of a danger in the common stair area.
8 Schedule 2, paragraph 3 is clearly breached by the dangerous practice of the free rent tenant of the Respondents leaving rubble and dust strewn on the common staircase, and by his damage to the stair rail and the dumping on the staircase of the boards we have detailed. The Respondents have shown no interest in remedying any of this to date, as we learned that Ms Hignell had cleared the rubble and dust from much of the stairway and the boards remain still. Schedule 2 paragraph 7 is clearly breached by the refusal of the Respondent to act when his neighbour, Ms Hignell, drew to his attention the ingress of water from the window area of the property. General 35. The Tribunal finds it unfortunate that this matter should have had to be brought before it. Had the Respondents shown a good neighbour attitude, none of the breaches of covenant need have arisen. Andrew Cresswell (Chairman) Date 8 March 2011 A member of the Southern Leasehold Valuation Tribunal Appointed by the Lord Chancellor