[2024] UKUT 0135 (LC)

Flat 44 is in Block A, 4 Sanctuary Street (“the Block”), one of three built by Wimpey in the early 2000’s. The others are Block B, known as Isaac Way, and Block C, known as Gaitskell Way. The five-storey block is of concrete framed construction with flat roofs and projecting concrete balconies. The main elevations are faced with brick, but in part, largely at the back of the balconies, include areas of cladding.

Mr Lehner purchased the long leasehold interest in Flat 44 on 26 July 2019. His lease was dated 23 June 2004, and had originally been granted by Wimpey to Gavin Fox and Iain Bryan Perry, with LSMC participating as management company. The term was 125 years less seven days from 1 January 2003 at an annual rent of £150. We have not seen a complete copy of the lease, but we assume that it adopted a conventional tri-partite structure, with LSMC covenanting to keep the building in repair in return for a service charge payable by the leaseholders.

On 28 September 2007, Wimpey granted an intermediate lease of the block to LSMC, for a term of 125 years from 1 January 2003. Shortly afterwards, on 5 October 2007, Damgate Freeholds Limited (“Damgate”), who we understand originally sold the land to Wimpey, exercised an option to reacquire the freehold interest in the block.

Following the Grenfell Tower fire of 14 June 2017 the safety of all modern high-rise buildings came under scrutiny. On 21 February 2018 the respondent obtained a fire risk assessment report, which assessed the Block’s fire risk as low, but in October 2019 a further report recommended that the cladding and balconies be inspected by a specialist contractor. This was put in hand, and on 26 November 2019 Efectis UK/Ireland Ltd (“Efectis”) recommended the replacement of the insulation behind the vertical cladding panels on the exterior of the Block and the addition of vertical cavity barriers between each flat.

In January 2020, the Ministry of Housing Communities & Local Government (“MHCLG”) issued a document titled Advice for Building Owners of Multi-storey Multi-occupied Residential Buildings (since withdrawn). After considering it, LSMC wrote to the leaseholders on 14 February 2020 indicating that it intended to carry out works to ensure the blocks complied with the MHCLG advice, and to ensure that the flats were mortgageable. The actions proposed involved (i) the appointment of a contractor to open up the cladding; (ii) a review of the base wall and fixtures by an engineer; (iii) the agreement of a suitable and compliant outline scope of works; (iv) to address identified breaches in respect of the cladding, insulation and party wall and fire breaks; and (v) to prepare a specification of the required works.

These works were put out to tender, and on 5 February 2021 leaseholders were notified that the total cost would be £211,119, of which £61,119 would be met from reserves. The amount due to be collected from the leaseholders was therefore £150,000.

On 8 February 2021, Mr Lehner received a demand for his contribution of £1,244.85. The demand included a statement for the purposes of sections 47 and 48, Landlord and Tenant Act 1987 that his landlord was Damgate Freeholds Limited.

By its decision of 12 April 2023, the FTT determined that Mr Lehner was liable to pay the sum demanded. He applied for permission to appeal but was refused by the FTT. Permission was subsequently granted by this Tribunal.