[2024] UKUT 423 (LC)

What the appellant says is that the FTT made its order on the basis that he had been in breach of his management obligations in the respondent’s lease, and that the breaches found were failures to repair and maintain the property. Yet the respondent did not give any particulars of such failures in her notice. Indeed, there is no mention of failure to repair or maintain in the material relating to ground 2 in the Third Schedule to the notice. Under section 24(7) the FTT has a discretion to make an order notwithstanding that the notice did not meet the requirements of section 22; but the FTT did not say that it was exercising that discretion. And it could not properly have done so, because the notice did not fulfil its purpose, namely to show the appellant exactly what was alleged against him as a basis for an order.

At first sight there is some force in that argument. Ground 2 in the Second Schedule to the notice alleged breaches of the landlord’s covenants, yet the “matters relied on” under Ground 2 in the Third Schedule did not refer to failure to maintain or repair. True, under ground 1, which stated that the tenants had no confidence in the management of the property – the points set out in the fourth Schedule included “The building is falling into disrepair” and “Infestation continues without resolution”. But there is no detail of the disrepair or of the infestation. Ms Gray said that the notice did not tell the appellant what it was the tenants complained of, and as a result he had “no opportunity” to put matters right. She argued that if the FTT thought the notice was valid it did not say why, and that the appellant is entitled to a proper explanation and moreover that if the FTT thought the notice was valid that was an error of law. She pointed out that a section 22 notice is the converse of a notice given under section 146 of the Law of Property Act 1925. The latter alerts the tenant to the reasons why the landlord seeks to forfeit his lease, and therefore has to tell the tenant what is said to be wrong and the steps needed to put it right; the section 22 notice tells the landlord what is said to be wrong before his valuable right to manage is taken away from him. Ms Gray pointed to the comparison drawn between a section 22 notice and a section 146 notice both in Woodfall: The Law of Landlord and Tenant at paragraph 28-043 and in the Encyclopedia of Housing Law.

For the respondent, Mr Verduyn pointed out that the FTT bundle included correspondence between the tenant’s representative and the appellant from which it was clear that the appellant had been aware for a long time of the problems with rats, water ingress, the lifts and the heating. He said that the appellant knew all he needed to know, particularly in light of the fact that he admitted the relevant breaches of covenant (see paragraph 22 above). Ms Gray countered that the appellant had in fact denied that there was any further problem with the heating; but it is clear from the appellant’s witness statement that he admitted that there had been a problem with the heating although he told the FTT that it had been resolved.

Mr Verduyn argued that if the Tribunal was against him and found that the notice had been inadequate, then the Tribunal should substitute its own decision, and exercise the discretion conferred by section 24(7) so as to make an order appointing the manager nonetheless.