UT Neutral citation number: [2013] UKUT 493 (LC)

Case Number LRX/33/2012

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LANDLORD AND TENANT – service of notices –sections 47 and 48 Landlord and Tenant Act 1987

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF

THE LEASEHOLD VALUATION TRIBUNAL OF THE

LONDON RENT ASSESSMENT PANEL

BETWEEN MR K AND MRS E CULLEN Appellants

and

BARNARD LODGE MANAGEMENT LIMITED  Respondents

Re: 17 Barnard Lodge,

Shaftesbury Avenue,

New Barnet

EN5 5JP

Before: His Honour Judge Nigel Gerald

Sitting at: The Upper Tribunal (Lands Chamber), 45 Bedford Square,

London, WC1B 3DN

on 2 October 2013

The following cases are referred to in this decision:

None

DECISION

Introduction

1.           The appellants Mr and Mrs Cullen are joint registered proprietors of a long lease of one of the flats at 17 Barnard Lodge, Shaftesbury Avenue, New Barnet, EN5 5JP.  The respondent is the freehold reversioner and landlord of that block of flats.  The respondent acquired the freehold following collective enfranchisement of the freehold by the tenant in 1999.  At that point in time Mrs Cullen’s mother was the owner of the lease, she sadly passed away in 2001 when Mrs Cullen became entitled to that lease, but it was not until 2008 that Mr and Mrs Cullen became the registered proprietors at HM Land Registry.

2.           The appeal is against a decision of the Leasehold Valuation Tribunal dated 18 December 2012.  Following the refusal of the LVT to grant permission to appeal, this Tribunal granted permission to appeal on a very limited ground as follows:

“There is a realistic prospect of success on this ground that the LVT failed to deal with the applicant’s contention that the service charges were not due by reason of failures on the part of the landlord to comply with the provisions of section 47 and 48 of the Landlord and Tenant Act 1987.  Permission to appeal limited this issue.  The appeal will be dealt with by way of review.”

3.           What was in issue before the LVT was two service charge demands, one dated 1 May 2010 and the other dated 15 October 2010.  The May 2010 demand had not I have been told been served on the appellants until some time in September 2010 when the appellants received it as clipped to a statutory demand for payment of the outstanding sums claimed. 

4.           Both service charge demands are in common form albeit for different amounts.  They each provide for payment to Barnard Lodge (Management) Limited stating the relevant bank account number.  They both then provide as follows:

“Barnard Lodge (Management) Limited is a lessees freehold owning company.  All notices (including notices in proceedings) should be sent to the registered office: 27 Station Road, New Barnet, EN5 1PH.”

5.           Mr and Mrs Cullen told me that upon receipt of the May 2010 notice in September 2010 they did not know the name of the landlord namely Barnard Lodge (Management) Limited.  However by the time they have received the October 2010 demand they had looked at their lease and knew that the name of the landlord was Barnard Lodge (Management) Limited and it therefore followed that certainly in respect of the second demand they well understood furnished with that background information that the name of the company stated on the demands was the landlord as is confirmed by the statement “Barnard Lodge (Management) Limited is a lessees freehold owning company”.  In was in those circumstances they accepted in their 10 December 2010 Statement of Case to the LVT that “the first notification received by the applicants from the respondent in accordance with these provisions [section 47 and 48 of the 1987 Act] was the attached application for payment dated 15 October 2010”.

6.           The application came before the LVT on two dates, 1 March 2011 and 13 September 2011.  Mr and Mrs Cullen were represented by Stan Gallagher of counsel and also by solicitors Compton’s on the 1 March 2011 but for financial reasons were not represented save by themselves at the 13 September 2011 hearing.  They told me and it is clear from the decision of the LVT that the validity of the May and October 2010 notices, namely their alleged failure to comply with section 47 and 48 of the 1987 Act was not argued before the LVT by Mr Gallagher or indeed by themselves.  And it seems quite clear to me that the reason for that is because it was not an issue because by that stage the Cullens had accepted certainly that the second notice was valid from which it would follow that any defect in the first one was cured in the sense that it complied with section 47 and 48 of the 1987 Act as the Cullens then knew the name and address of the landlord.

7.           Against that background in my judgment the LVT cannot be criticised for failing to adjudicate upon an issue they were not asked to adjudicate upon.  Whilst in paragraph 3(1) they do refer to an allegation of failure to comply with section 47 and 48 of the 1987 Act, it is not dealt with elsewhere in the decision save for an oblique reference in paragraph 20(ii) to “the failure to abide by the statutory provisions”.  In context that was a reference to an allegation that there had been a failure to comply with various statutory provisions including section 20 and 20B, section 21B of the Landlord and Tenant Act 1985.

8.           In my judgment it is not open to Mr and Mrs Cullen to appeal against the decision on the grounds that the LVT failed to deal with a contention which in actual fact was not a live issue before the LVT from which it followed that the LVT did not need to make a decision about that matter at all.  Furthermore it is not open to Mr and Mrs Cullen to raise an argument on a point which had been conceded before the LVT. 

9.           For those reasons the appeal is dismissed.

Dated 3 October 2013

His Honour Judge Nigel Gerald