[2024] UKUT 253 (LC)

The respondents made their two applications to the FTT on 16 August 2022. On 28 October 2022 (prior to service of the applications on the appellants) the FTT issued a “Case Management Note and Directions” and said:

“Following a preliminary review of the applications a procedural judge is concerned that the Tribunal may not have the jurisdiction to determine either all or part of the applications because all or some of the individual student units may not constitute dwellings within the meaning of the Landlord and Tenant act 1985…

The parties and their representatives are specifically referred to the Upper Tribunal decision in [JLK Ltd v Ezekwe] a copy of which is enclosed, and are invited to make written representations in respect of this jurisdictional matter in line with the directions set out below.”

The directions required the respondents to serve on the appellants their applications, and a copy of the directions, within 7 days, and both parties to make representations with 28 days of the date of directions. As we saw above the applications and the directions were served on 4 November 2022.

Counsel for the respondents filed written representations on 24 November 2022, describing the properties and explaining the need to replace the windows. He then said:

“14.

The Applications have been made adopting an abundance of caution and so as to avoid any failure on the part of the Applicant to comply with its obligations pursuant to: a. Section 168(4) of the Act 2002; and/or b. Section 20 of the Act 1985.

15.

Shortly put, the Applicant avers that neither the Units nor the Studios are a ‘dwelling’ for the purposes of the Act 2002. As such the Applicant avers that it is permitted to serve a s.146 Notice without reference to s.168(4) of the Act 2002.” (emphasis added)

That averment is surprising given that there was no hint of it in the applications made to the FTT on 16 August 2022. Both included, on the Tribunal’s form, an explanation as to why orders (under section 20ZA of the 1985 Act, and under section 168 of the 2002 Act) were necessary. Both relied upon a detailed witness statement made by Adam Long about the condition of the properties and the dealings between the parties and referring to a surveyor’s report about the windows. There is no mention of any doubt about jurisdiction, let alone to the applications being made out of an “abundance of caution” and in the belief that there was no jurisdiction at all. There was no invitation to the FTT to decline jurisdiction. Indeed Mr Long made a further witness statement on 25 November 2022 emphasising the urgency of the works.

The statements at paragraphs 14 and 15 of the respondents’ representations are even more surprising when one reads on. There is a discussion of JKL Ltd v Ezekwe and the question whether the cluster units were “dwellings”, and no further mention of the studios until the final two paragraphs of the submissions which read:

“26.

Accordingly, and applying the decision in JLK Limited, it is the Applicant’s contention that:

i.

the Units within the Clusters are not “dwellings” for the purposes of the Act 1985 or the Act 2002; and

ii.

each of the Studios are “separate dwellings” for the purposes of the Act 1985 of the Act 2002.

27.

In the premises, the Tribunal is respectively invited to decline jurisdiction in relation to the Units and to grant the Application in relation to the Studios.” (emphasis added)

It is possible, perhaps likely, that what was said at paragraph 15 of those representations about the studios was an error, perhaps arising from a failure to amend early draft text. Perhaps what the respondents said about the studios at paragraph 26ii was what they meant. Even so, the respondents’ stated position about the cluster units at paragraph 26i is at odds with the form of their applications, made against studios and cluster units alike, with no hint of doubt about the cluster units and no indication that the application is made “out of abundance of caution” as regards the cluster units.

On 9 December 2022 counsel for the appellants submitted written representations. He discussed a number of cases including Ezekwe, as well as referring to the terms of the leases, and considered the cluster units and the studios in turn. He concluded:

“37.

It follows that the studios are each “occupied as a separate dwelling” but … the cluster rooms are not: nobody who shares a kitchen can be said to be tenant of a part of a house let as a separate dwelling. The cluster room plus the right to use the communal space does not satisfy the requirement because the tenant is not tenant of the whole of that accommodation, but only of part of it; the cluster room itself will not do, because that is not occupied as the tenant’s dwelling, but only as part of it.

38.

In summary:

a.

the FTT does have jurisdiction to determine the Applications in respect of any of the studios.

b.

the FTT does not have jurisdiction to determine either of the Applications in respect of any of the cluster rooms.”

At that point therefore the parties to the appeal were both saying that the clusters were not dwellings, and that the FTT had no jurisdiction. And if one looks at the conclusion of the respondents’ representations and ignores paragraphs 14 and 15 then both parties were saying that the studios were dwellings and the FTT did have jurisdiction.

However, another group of leaseholders (to whom I refer as the “Second Group of leaseholders”) also made written submissions (which I have not seen) in response to the FTT’s directions arguing that the FTT did not have jurisdiction over any of the units – neither cluster units nor studios. Accordingly there was a dispute about jurisdiction, although not between the parties to this appeal once the submissions of November and December 2022 had been exchanged (again taking the respondents’ position to be that stated at the conclusion to their representations).

There was a hearing for directions on 16 December 2022. One wonders why the FTT did not at that point strike out the applications as against the cluster units, which was obviously going to happen at some point since all the parties agreed with the FTT that it did not have jurisdiction in respect of them. Perhaps the parties were content to wait for jurisdiction to be dealt with in a single order once the dispute about the studios had been resolved. But at any rate it was clear that there was no need for any further argument about the cluster rooms.

In fact no further argument was made in respect of the studio rooms either; the FTT made its decision of 27 April 2023 in reliance on the written submissions made in response to its initial directions. In that decision the FTT went through the relevant case law at length. It decided in a brief paragraph without any discussion that the cluster rooms were not dwellings and that it had no jurisdiction in respect of those rooms. It devoted 24 paragraphs to discussion of the studio rooms in light of Q Studios (Stoke) RTM Co Ltd v Premier Ground Rents No 6 Ltd [2020] UKUT 197 (LC), and also referred to Goodrich v Paisner and others [1956) WLR 1053; it concluded that the facts were on all fours with those considered in Q Studios and that the studios were indeed separate dwellings.

The Second Group of leaseholders, represented by Mr Yell, made an application to the FTT in its statement of case for costs under rule 13(1) of the FTT’s rules, and the FTT refused that application in its decision of 27 April 2023. The present appellants made an application for costs on 19 June 2023; the FTT refused that application on 1 November 2023 and this appeal is against that decision.