Upper Tribunal slaps LVT repeatedly until it behaves

It has long been a concern of mine that the LVT does, from time to time, overstep its authority and is occasionally inconsistent in its approach. In particular my concerns have related to hearings where the panel have included matters not raised by either party. The LVT has no mandate to exceed its remit but, in my experience and anecdotally from other agents it regularly does, by either raising additional matters (outside of those raised by the parties) or pointing the applicant elsewhere. Of course, most landlords do not have the time or the resources to appeal these decisions and consequently the LVT has acted with a degree of impunity.


I am pleased to report however that time has been called on some of these practices and a series of Upper Tribunal (UT) decisions have clarified, in no uncertain terms, the limitation in the scope of what can be dealt with without both parties having the opportunity to comment, defend or put right.

There is an important principal at stake here. All parties have the opportunity to seek advice in advance of any action. It is not for the LVT to steer the applicant nor to assist their position - although I accept that the panel may direct them. In my view there is some bias, but no one should be surprised here. Landlords can turn up armed with barristers and deep pockets, but this is principally a forum for leaseholders to object to the activities of landlords and/or their agents and rightly they should be given direction if required. However courts and tribunals are limited to dealing with the matters in hand and should not feel free to open other avenues of investigation.

I have also recently seen a case where the manager had negotiated a new contract with a reduced management fee on the previous year. We might regard this as a normal commercial activity given the competitiveness of the market but an LVT panel has subsequently taken that to mean that previous year's fees must have been too high and reduced those to the same level. This is an absurd notion that puts all agents at risk of being penalised simply for negotiating in an effort to retain work. In the one-year contract environment in which we operate, who is to say that the fee wasn't correct in year one but reduced in later years due to familiarity and countless other commercial factors? The LVT should not be interfering in the market.

In another instance the LVT has decided that it would hear a case, despite there already being a county court judgement in the matter. In another the managing agent was made the respondent despite it clearly being the landlord. The list goes on, and all agents have stories of inconsistency, unfairness and of downright stupidity when it comes to dealing with this tribunal.

I expect more slappings to follow but I am also heartened by some of the cases I have read very recently. These included a recent case where the Chairman was at pains to point out the limitations of the LVTs jurisdiction and that, whilst the Act allows for discretion to be used, this is only where it is just and equitable to do so in all circumstances. In this instance the Applicants were reminded that the LVT could only deal with matters of payability and reasonableness under S.27A.

If you are interested in reading the pertinent UT cases (there are some good analyses online) they are as follows:

Redrow Regeneration (Barking) Ltd v Edwards - Lease terms are law, plain and simple, it is not for the developer to have to prove their right to collect charges.

Wales and West Housing Association v Paine - LVT reduced management fees. Landlord appealed, the UT held that this was not the matter raised.

Birmingham City Council V Keddie and Hill - LVT decided windows should not have been replaced at all. Again on appeal this was not deemed the matter that was raised.

Crosspite v Sachdev - LVT questioned payability of subletting fees. Overruled by UT who stated that payability was not the question, it was the amount that was disputed.



An excellent blog here:

http://nearlylegal.co.uk/blog/2012/10/how-many-times-to-i-have-to-tell-you/

And here:

http://www.lawandlease.co.uk/2012/10/28/1-redrow-regeneration-barking-ltd-2-barking-central-management-company-no2-ltd-v-1-ryan-edwards-2-adewale-anibaba-3-planimir-kostov-petkov-4-david-gill-2012-ukut-373-lc/