Tanfield Chambers Service Charge Summit AGENDA

Transcription

1 Tanfield Chambers Service Charge Summit AGENDA 8.30am 9.15am 9.15am 9.30am Registration and Refreshments Welcome 9.30am 10.00am Case Law Update Phillip Rainey QC As has become customary, the Summit will open with an update of cases, which have shaped the service charge landscape over the past twelve months am 10.30am Plenary 1 TBC Donald Scannell, the Registrar to the Upper Tribunal (Lands Chamber) 10.30am 11.00am Refreshment break 11.00am 12.00pm Break-out sessions 1 Delegates can choose from the following topics; please note 1C & 2C are a combined session. 1A Recognised Tenants Associations Rebecca Cattermole, Katie Gray At the beginning of this year, the Upper Tribunal (Lands Chamber) gave judgment in what was originally a rather innocuous case, Rosslyn Mansions Tenants Association v Winstonworth Ltd [2015] UKUT 0011 (LC). It concerned an application for a certificate of recognition from the First-tier Tribunal Property Chamber (Residential Property) (FTT) under s.29 of the Landlord and Tenant Act The successful appeal of the FTT s decision to dismiss the application - on the basis that only 57 per cent of tenants were members - has brought into sharp focus how such applications should be determined, and overturned a standard approach adopted for the last 30 years. Following the Upper Tribunal decision in Rosslyn Mansions, and the FTT decision in One West India Quay Residents Association s hotly contested application for recognition (see, One West India Quay Residents Association v Page 1

2 One West India Quay Development Company (Eastern) Ltd and No.1 West India Quay (Residential) Ltd, LON/00BG/LRA/2013/0008), the DCLG issued a discussion paper to explore ways in which to make it easier for tenants association to obtain recognition. This session will consider: The pros and cons in forming an RTA Applying for a certificate of recognition The factors which the FTT should consider in determining the application The constitution of the RTA The future and the government plans for RTAs 1B Insurance Andrew Butler, Ellodie Gibbons Obligations to insure, and to contribute to insurance, throw up a distinctive set of problems in residential leases. This breakout session will address some of these problems, including common insurance covenants, what the landlord can and cannot recover under service charge provisions, and who should benefit from discounts. It will take a look at some of the issues thrown up by recent authority, including in particular the Qdime case. The speakers will also consider what happens in the event of claims arising, with particular reference to the landlord s obligation to expend insurance money, and the difficult issues of subrogation which arise when damage is caused by tenants. Finally, the session will cover important developments in the law of insurance, and in particular the Insurance Act 2015, which comes into force next year and will looks set to have a significant impact in the way that insurance is placed and managed in the context of residential property. 1C Mediation Morning am 1.00pm Lady Margaret Wilson, Nicholas Isaac This will be a practical introduction to mediation. The two-hour session will start with an introduction from Lady Wilson, our new mediator. She will summarise the advantages of mediation, explain the kinds of residential leasehold disputes to which the process is particularly suited, and outline the way in which a mediation can be initiated, prepared and conducted, and its probable cost. She will also explain the advantages and disadvantages of "med-arb", which can be a useful form of dispute resolution where all parties are determined to resolve their disputes on the day. Page 2

3 Nick Isaac will then speak briefly about mediation advocacy, how it differs from courtroom advocacy, and will give some pointers as to how to approach mediation from an advocate s perspective. The introductory talk will be followed by two short practical exercises based on a case study involving a typical service charge dispute - with a few twists. The first will demonstrate how the mediation should be prepared. The second will be a mini-mediation. In both exercises the parts will be taken by members of Tanfield Chambers pm 12.05pm Move to next break-out session 12.05pm 1.00pm Break-out sessions 2 Delegates can choose from the following topics; please note 1C & 2C are a combined session. 2A Lessees as their own landlords James Fieldsend, Cecily Crampin The effect of the enfranchisement legislation is that increasingly long leaseholders are their own landlords, either by holding the freehold jointly as individuals, or, more commonly, by membership of a lessee-owned freehold company. In smaller blocks of flats such lessee management can be effective. What s more, management with less formality than the lease and statute require is often no bar to a happily run block. When there is a difference of opinion between leaseholders, problems arise, problems which often demonstrate the importance of understanding and following the requirements of trust or company law applying to their mode of ownership. For example, when one of two joint owners of the freehold, does not pay his service charge as lessee, can the other sue? What about if a company sues one of its lessees? Can the lessee demand disclosure of the advice the company has had in the proceedings? What is the view of the Tribunal when one lessee refuses to pay his lessee owned freehold company his share of the service charges saying he has not been consulted? This seminar will explore relevant issues by reference to case studies. 2B Prophylactic Repairs Christopher Heather, Harriet Holmes When are measures that are taken to prevent the occurrence of deterioration in the future of a kind which has already had to be repaired in the past repairs? This session will explore the extent to which the expression prevention is better than cure applies to repairing covenants, and will focus on the arguments Page 3

4 relating to windows and roofs of blocks of flats. It will consider questions such as: (1) Is it reasonable to replace a roof, rather than carry out patch repairs? (2) Is it reasonable to replace windows, rather than repair them? (3) Can a landlord replace all the windows when only some are out of repair? 2C Mediation Morning Continued Lady Margaret Wilson, Nicholas Isaac 1.00pm 2.00pm Lunch 2.00pm 3.00pm Break-out sessions 3 Delegates can choose from the following topics: 3A Variable administration charges and costs Adrian Carr, Carl Fain This session will explore what are variable administration charges with a particular focus on legal costs. The participants will work through a problem and there will be a discussion on the ability for the landlord to recover its costs under the common s.146 costs indemnity clauses in leases and the constraints on doing this. The session will look at variable administration charges from both the landlord and the tenant s perspective. 3B Variation of service charge provisions in leases pursuant to Part IV of the 1987 Act Jonathan Upton, Michael Walsh This seminar will consider the various grounds on which a party to a lease can apply to vary service charge provisions pursuant to Part IV of the Landlord and Tenant Act It will consider who can apply, in what circumstances, the evidential requirements, the factors relevant to the exercise of discretion, compensation and the procedure to follow. The seminar will include an interesting discussion on the application of Part IV of the 1987 Act to mixed-use developments with reference to recent cases. 3C Apportionment Page 4

5 Nicola Muir, Tim Polli This workshop will consider: (1) Methods of apportioning the total service cost for a block between the leaseholders. (2) Common arguments (3) The impact of s. 27 A(6) on any provision in the lease which determines the manner in which apportionment should be undertaken in the light of Windermere Marina Village Ltd v Wild [2014] UKUT 163 (LC). 3.00pm 3.05pm Move to next break-out session 3.05pm 4.00pm Break-out sessions 4 Delegates can choose from the following topics: 4A Lessees as their own landlords James Fieldsend, Cecily Crampin The effect of the enfranchisement legislation is that increasingly long leaseholders are their own landlords, either by holding the freehold jointly as individuals, or, more commonly, by membership of a lessee-owned freehold company. In smaller blocks of flats such lessee management can be effective. What s more, management with less formality than the lease and statute require is often no bar to a happily run block. When there is a difference of opinion between leaseholders, problems arise, problems which often demonstrate the importance of understanding and following the requirements of trust or company law applying to their mode of ownership. For example, when one of two joint owners of the freehold, does not pay his service charge as lessee, can the other sue? What about if a company sues one of its lessees? Can the lessee demand disclosure of the advice the company has had in the proceedings? What is the view of the Tribunal when one lessee refuses to pay his lessee owned freehold company his share of the service charges saying he has not been consulted? This seminar will explore relevant issues by reference to case studies. 4B Insurance Andrew Butler, Ellodie Gibbons Obligations to insure, and to contribute to insurance, throw up a distinctive set of problems in residential leases. This breakout session will address some of these problems, including common insurance covenants, what the landlord can and cannot recover under service charge provisions, and who should benefit Page 5

6 from discounts. It will take a look at some of the issues thrown up by recent authority, including in particular the Qdime case. The speakers will also consider what happens in the event of claims arising, with particular reference to the landlord s obligation to expend insurance money, and the difficult issues of subrogation which arise when damage is caused by tenants. Finally, the session will cover important developments in the law of insurance, and in particular the Insurance Act 2015, which comes into force next year and will looks set to have a significant impact in the way that insurance is placed and managed in the context of residential property. 4C Apportionment Nicola Muir, Tim Polli This workshop will consider: (1) Methods of apportioning the total service cost for a block between the leaseholders. (2) Common arguments (3) The impact of s. 27 A(6) on any provision in the lease which determines the manner in which apportionment should be undertaken in the light of Windermere Marina Village Ltd v Wild [2014] UKUT 163 (LC). 4.00pm 4.20pm 4.20pm 4.50pm Refreshment Break Section 20B: ripe for reconsideration by the Court of Appeal? Robert Bowker In OM Property Management Ltd v Burr [2013] EWCA Civ 479 the Court of Appeal gave guidance on the date on which costs are incurred for the purposes of section 20B of the Landlord and Tenant Act Section 20B issues which still remain unresolved include: The date on which costs are incurred under a contract providing for payments on account, and The irreducible minimum of information required for an effective s.20b(2) notice. From a practical perspective therefore, when drafting a notice under section 20B(2): What information should be included and excluded? Is there a correct form of words to use? Ought there to be a prescribed form with information for tenants? Page 6

7 Is section 20B, as currently framed, fit for purpose? If so, does it dovetail with other provisions in the 1985 Act? Should Parliament intervene? 4.50pm 5.10pm Questions and answers Chaired by Mark Loveday with Andrew Butler, Christopher Heather, James Fieldsend, Ellodie Gibbons 5.10pm 5.15pm Closing remarks Page 7