[2024] UKUT 253 (LC)

The relevant legal background can be briefly stated.

Among the responses available to a landlord when a tenant is in breach of covenant (and perhaps the most dramatic of those responses) is to forfeit the lease. In most cases before forfeiture the landlord must serve on the tenant a notice under section 146 of the Law of Property Act 1925 setting out the breach and, where possible, the measures needed to put it right. Section 168 of the Commonhold and Leasehold Reform Act 2002 provides some protection for residential tenants by preventing the service of a section 146 notice by a landlord “under a long lease of a dwelling” unless the breach of covenant is admitted, or a court has determined that the breach has occurred, or the FTT has determined on an application under section 168(4) that the breach has occurred. Section 168(4) says:

“ A landlord under a long lease of a dwelling may make an application to [the FTT] for a determination that a breach of covenant or condition in the lease has occurred.”

So the FTT has jurisdiction to make such a determination only if the leasehold property is a “dwelling” – that term being defined as having “the same meaning as in the 1985 Act” (section 169(5) of the 2002 Act).

The “1985 Act” is the Landlord and Tenant Act 1985 where section 38 provides:

““dwelling” means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it.”

A number of cases have explored that definition, which also arises in the context of the Rent Acts, and it is clear that where the tenant shares living accommodation, such as a kitchen, with others then the leased property is not “occupied or intended to be occupied as a separate dwelling”. In JLK Ltd v Ezekwe [2017] UKUT 277 (LC) the Tribunal had to decide the status of “cluster rooms” let to students, where the letting was of a room with en suite bathroom and the student also had the use of a shared kitchen and lounge and showers along with other student tenants. The Tribunal (the Deputy President, Martin Rodger QC) considered the authorities and concluded:

“The tenant of each of the units has the right to share a kitchen, lounge, shower and w.c. with every other tenant on the same floor.  Can it then be said that the tenant is the tenant of a part of the building which is occupied or intended to be occupied as a separate dwelling?  I do not think it can …  The bed-sitting room plus the right to use the communal space will not satisfy the requirement because the tenant is not tenant of the whole of that accommodation, but only of part of it; the bed-sitting room itself will not do, because that is not occupied as the tenant’s dwelling, but only as part of it.”

The term “dwelling” is defined in the 1985 Act because it makes provision in section 18 and following about service charges, defined in section 18(1) as “an amount payable by a tenant of a dwelling…”. So the FTT has jurisdiction under section 27A of the 1985 Act to determine whether service charges are payable, and under section 20ZA to grant a dispensation from consultation requirements of section 20 for major works, only in respect of a building or part of a building “occupied or intended to be occupied as a separate dwelling”.

Further legal background relates to the power of the FTT to award costs, but it will be convenient to look at that in context later.