Thursday 28th October 2021
By Appellant’s Notice filed on 23 February 2021, the Respondent Ms Mary Adwoa Akyaa Boakye (the Appellant here, the Tenant) appeals the decision of the Upper Tribunal (Lands Chamber) dated 18 December 2020, by which she set aside the First Tier Tribunal decision dated 7 February 2020 regarding the Tenant’s liability for service and administration charges pursuant to her lease.
Tenant holds a 125 year lease of one of 18 flats. The Appellant below, Kensquare Limited (Kensquare) , is the freeholder and had applied to the FTT for a determination of the reasonableness and payability of interim service charges for the years 2018-2019 and 2019-2020 under Section 27A of the Landlord and Tenant Act 1985 and for a determination under Schedule 11 to the Commonhold and Leasehold Reform Act 2002 as to the Tenant’s liability to pay legal costs as an administration charge under the lease.
The First Tier Tribunal found in favour of the Tenant, reducing the amount of interim service charges payable, limiting the legal costs recoverable by Kensquare to only the 192.50 pounds incurred in preparing and serving a section 146 notice and holding that the Tenant was not liable to pay any of the legal costs associated with the Tribunal hearing.
The Respondent appealed with permission. The UT held that time was not of the essence for compliance and the August 2019 Demand was effective to increase the interim service charges for each of the financial years ending 31 March 2018 and 2019. The UT further held that legal costs incurred in relation to 2017 proceedings and the subsequent section 146 notice are in principle recoverable under para.5 of the 4th Sch. However, the FTT did not determine whether the 2017 Proceedings had been taken with a view to giving a s.146 notice and so this has been remitted to the FTT. The UT further held that legal costs incurred in relation to the recovery of service charges were also recoverable.
Lower Court Judgment:
Kensquare Ltd v Adwoa & Anor (LANDLORD AND TENANT – SERVICE CHARGES – notice of interim payment and whether time is of the essence)  UKUT 359 (LC) (18 December 2020) (bailii.org)