England and Wales Lands Tribunal

Anstone Properties Ltd v Surrenden Lodge Brighton Ltd [2006] EWLands LRX_44_2006 (28 November 2006)

LRX/44/2006

LANDS TRIBUNAL ACT 1949

LANDLORD AND TENANT ... service charge ( whether LVT's calculation of refund involved double counting ( appeal allowed.

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE SOUTHERN

RENT ASSESSMENT PANEL AND LEASEHOLD VALUATION TRIBUNAL

BETWEEN ANSTONE PROPERTIES LIMITED Appellant

and

SURRENDEN LODGE BRIGHTON LIMITED Respondent

Re: Surrenden Lodge

Surrenden Road

Brighton

East Sussex

BN1 6QB

DETERMINATION UNDER WRITTEN REPRESENTATIONS PROCEDURE

By

N J Rose FRICS

No cases referred to


 


DECISION

1. On 25 January 2006 the Leasehold Valuation Tribunal for the Southern Rent Assessment Panel published its decision on two applications by Surrenden Lodge Brighton Limited ("Surrenden") for a determination of its liability to pay service charges in respect of two purpose built blocks of flats known as Surrenden Lodge, Surrenden Road, Brighton, BN1 6QB. Surrenden had purchased the freehold interest in the flats on 13 February 2004 from Anstone Properties Ltd ("Anstone"), which was the respondent in the LVT proceedings. The first application related to service charges payable in the year 2003 and the second related to part of 2004. The service charges had been paid by the tenants of the individual flats prior to their joint acquisition of the freehold interest through Surrenden, which was treated by the LVT as agent for the tenants of each of the flats.
2. The service charges in issue related to surveyor's fees and managing agent's fees. The LVT determined the various disputed items. It calculated that the result of its determination was that Anstone should repay £14,313.21 to the new managing agents of the flats for the benefit of the lessees.
3. Anstone applied to the LVT for permission to appeal and permission was refused on 8 March 2006. The application was renewed before the Lands Tribunal. On 21 June 2006 the President granted permission to appeal, limited to the question whether, in calculating the refund due, the LVT had twice included a surveyor's fee of £1,057.50 (invoice 0811).
4. The parties agreed that the appeal should be conducted without an oral hearing, pursuant to rule 27 of the Lands Tribunal Rules 1996. Written submissions have been received from Mr C N Basley, FRICS IRRV on behalf of Anstone and Mr Gerald Sexton, chair and company secretary of Surrenden on behalf of that company. Although the appeal has been confined to the single issue of the LVT's treatment of invoice 0811, Mr Basley sought to argue that the amount of refund ordered by the LVT should be reduced by £4,561.21. He submitted that, among other errors, the LVT had double counted invoice 0811. Mr Sexton argued that there was no justification for reducing the LVT's calculation of the refund by £1,057.50. He did not, however, comment upon the details of the LVT's calculation, but instead referred back to his initial submissions to the LVT, emphasising in particular that the amount in question had originally been included in the draft accounts for the year ending 25 December 2003 as surveyor's fees, but was subsequently included as part of the overall managing agent's fees.
5. The position, in my judgment, is quite straightforward. The LVT stated that its determination of service charges payable resulted in repayment of a total of £14,313.21 calculated as follows:

2003	£
Managing agent's fees	5,287.00
Surveyor's fees (Ref MAN/0638/02)	1,468.75
Surveyor's fees (Ref MAN/0811/04)	1,057.50
Managing agent's fees (MAN/0708/03)	2,643.75
2004
Management fees (MAN/965/04)	1,057.50
Management fees (MAN/967,990 and 991//04)	2,248.71
LVT fees	550.00
	£14,313.21

6. The first figure in this calculation ... £5,287.00 ( was said by the LVT in paragraph 14(a) of its decision to have been arrived at by deducting £10,575 (the product of £150 plus VAT per flat) from the total amount paid of £15,862. In refusing permission to appeal, the LVT said that it had prepared that calculation after considering a letter dated 10 August 2005 from Messrs Sykes, Dalby and Truelove. It is clear from that letter that the total amount paid was made up as follows:

	£
Prepaid fees brought forward ... 6 months to June 2003	5,287.50
Charges re Commonhold and Leasehold Reform Act	5,287.50
Ten payments of £1,057.50	10,575.00
Less prepaid at year end (3 x £881.25 + £1,057.50)	( 3,701.25)
Less prepaid 50% of Commonhold and Leasehold Reform Act charges	( 2,643.75)
Add transfer invoice 0811 from surveyor's fees	1,057.50
	15,862.50

7. Thus, in calculating that £5,287.00 of managing agent's fees paid should be refunded, the LVT was giving Surrenden credit for, among other payments, the £1,057.50 charged in invoice 0811. But their calculation of the total refund payable also included that invoice as a separate item. The calculation was therefore in error and the total refund payable should be reduced to £13,255.71 (£14,313.21 - £1,057.50). The appeal is allowed to that extent.

Dated 28 November 2006

N J Rose FRICS