[2023] UKUT 243 (LC)

Sections 27A(1) and (3), Landlord and Tenant Act 1985 create a right to apply to a tribunal to determine the amount of a disputed residential service charge. That right is protected by an anti-avoidance provision at section 27A(6), which says this:

“An agreement by the tenant of a dwelling (other than a post-dispute arbitration agreement) is void in so far as it purports to provide for a determination –

(a)

in a particular manner, or

(b)

on particular evidence,

of any question which may be the subject of an application under subsection (1) or (3).”

In Aviva Ground Rent Investors GP Ltd v Williams [2023] UKSC 6 the Supreme Court gave definitive guidance on the meaning and effect of section 27A(6). Unfortunately, the parties to this appeal cannot agree how the Supreme Court’s decision affects their dispute.

The appellant, Dr Braganza, owns a flat in a development at Hulme in Manchester. The development is known as St Georges II and comprises a mixture of flats and houses, all of which are let on long leases which require the leaseholder to pay a service charge. Dr Braganza purchased his lease in April 2018 and up to April 2021 he paid all the service charges claimed by his landlord, The Riverside Group Ltd (Riverside), which totalled £4,725.

In February 2021 Dr Braganza applied to the First-tier Tribunal, Property Chamber (the FTT), under section 27A, 1985 Act, asking it to determine whether the service charges he had paid had been properly due under his lease.

In its decision given on 30 November 2021, and re-issued with additional reasoning on 12 April 2022, the FTT confirmed that all of the charges claimed by Riverside had been due. It dismissed various criticisms made by Dr Braganza about the information provided to him and the way in which charges had been calculated and demanded.

Dr Braganza was dissatisfied with the FTT’s decision and applied for permission to appeal on a number of grounds. It was in response to that application that the FTT re-issued its decision, providing additional reasons to meet new points which Dr Braganza had raised. It refused permission to appeal on all grounds.

The only issue which remains live, and for which permission to appeal was given by this Tribunal, concerns the role of Riverside’s surveyor in determining the apportionment of the service charges between the flats and the houses on the development. The appeal has been determined on the basis of the parties’ written representations.

In order to understand the issue it is necessary to refer to the terms of Dr Braganza’s lease and to explain why, in relation to service charges, it does not operate in practice as the person who first drafted it might have anticipated.