[2024] UKUT 0135 (LC)

Until a few days before the hearing of the appeal, Mr Lehner was unaware of the grant of the intermediate lease of the Block by Wimpey to LSMC in 2007 and understood that his immediate landlord was the freeholder of the Block, Damgate, and that LSMC was the management company. The disputed service charge demand of 8 February 2021, and all other demands which Mr Lehner has received, appeared to confirm that understanding. They each referred to sections 47 and 48, Landlord and Tenant Act 1987 and gave the address of Damgate as the address at which notices in proceedings may be served on the landlord. Section 47 requires that demands served on a tenant must include the name and address of the landlord.

A landlord’s certificate under regulation 6 of the Leaseholder Protections Regulations is required to confirm whether the landlord under the lease on 14 February 2022 met the contribution condition. The earliest occasion on which any landlord’s certificate was served on Mr Lehner was shortly before the hearing of the appeal. The facts stated in that certificate are different from those stated in the service charge demand.

The certificate is in the form prescribed by the Leaseholder Protections Regulations. It was given by LSMC and signed by its director, Mr Meads, on 20 March 2024. It begins by identifying the lease to which it relates, which is Mr Lehner’s lease of Flat 44. It then states that LMSC was the landlord on 14 February 2022 (and therefore the “relevant landlord”) and that it is the current landlord. Damgate is stated to have been a superior landlord on 14 February 2022. The certificate also explains that Wimpey had granted an intermediate lease to LSMC in 2007, and that Damgate had then exercised its option and completed the purchase of the freehold on 5 October 2007 and has held it ever since.

The second part of the certificate is concerned with the “developer criteria” and is directly relevant to the paragraph 2 protection. It begins by identifying the relevant defect to which the information provided relates, as “the installation of cavity barriers and fire stops in the metal cladding and glazing systems at the building”. The prescribed form then contains four statements about the relevant defect, only one of which has been completed in this certificate. It states:

“On 14^th February 2022 at least one superior landlord was responsible for the relevant defect or was associated with a person responsible for a relevant defect.

The superior landlords responsible for the defect are Damgate Freeholds Limited (“DFL”)”

The prescribed form does not ask for an explanation of the statement of responsibility, but in this case LSMC chose to add information justifying its conclusion that Damgate is a person responsible for the defects. It described Damgate as responsible on the basis that it may have been in a joint venture with the developer or may itself have been a developer. Thus, Damgate “may have sold the site” to Wimpey for the purpose of the development and been granted an option to reacquire the freehold reversion at a predetermined price once all of the flats had been sold. LSMC stated that it did not have copies of the relevant documents, but that if its “beliefs” were correct, it considered the question to be determined would be whether Damgate “participated in the undertaking or commissioning of the development”.

During the hearing of the appeal we were shown an official copy of the register of title for the leasehold interest in the Block created by the intermediate lease, showing the state of the Land Register on 1 December 2022. This confirmed that LSMC has been the landlord of the occupational leaseholders of the flats in the building since 2007, including on 8 February 2021 when the disputed service charge demand was made. Dr Lehner disputed the suggestion that LSMC could be his son’s landlord, but the documents which we were shown (but which, it appears, were not provided to the FTT) establish that that is the case.

The demand of 8 February 2021 naming Damgate as Mr Lehner’s landlord was therefore inaccurate. Section 47(2), Landlord and Tenant Act 1987, provides that where the information concerning the name and address of the landlord required by section 47(1) is not contained in a written demand given to a tenant, any part of the amount demanded which consists of a service charge or an administration charge is treated as not being due from the tenant at any time until the required information is provided by the landlord. It follows that the sum of £1,244.85 demanded on behalf of LSMC was not payable. Nor will it be payable (if at all) until a demand correctly identifying the landlord is provided to Mr Lehner (the landlord certificate is not such a demand).

LSMC’s status as landlord at the date of the service charge demand is established by credible evidence (in the form of the official copy of the register of title) which it has produced for the first time at the hearing of the appeal and relies on. There is no reason why we should not take account of that material.

LSMC’s failure to comply with section 47(1), 1987 Act is enough to dispose of the appeal. It enables us to make a determination under section 27A, Landlord and Tenant Act 1985 at this stage of the analysis that nothing is currently payable in respect of the works to the building which gave rise to the disputed demand of 8 February 2021 in which Damgate was wrongly identified as landlord. But, as LSMC remains entitled to serve a compliant demand, it is appropriate for us to consider the other issues in the appeal.

We can now consider how the 2022 Act applies on the facts of this case.