[2025] UKUT 88 (LC)

Case No: LC-2024-437

APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL PROPERTY CHAMBER

FTT Ref: LON/OOBK/LVL/2023/0006

Royal Courts of Justice,

Strand, London WC2A 2LL

17 March 2025

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LANDLORD AND TENANT – VARIATION OF LEASES – power to introduce a new administration charge to enable RTM company to recover costs of service charge proceedings from defaulting leaseholder – power to vary leases to allow costs of proceedings to be recovered through service charge – prejudice – material considerations – ss. 35, 38, Landlord and Tenant Act 1987 – appeal allowed

BETWEEN:

56 WESTBOURNE TERRACE RTM COMPANY LIMITED

Appellant

-and-

JEREMY POLTURAK

ROBERT DAVIES

AND OTHER LEASEHOLDERS AT 56 WESTBOURNE TERRACE

Respondents

56 Westbourne Terrace,

London W2 3UJ

Martin Rodger KC,

Deputy Chamber President

18 February 2025

Carl Fain and Ceri Edmonds, instructed by Dean Wilson LLP, for the appellant

Jamal Demachkie, instructed by LAS Solicitors, for Mr Polturak

Mr Davies attended but did not address the Tribunal

The remaining respondents did not attend the hearing

© CROWN COPYRIGHT 2025

The following cases are referred to in this decision:

Barrett v Robinson [2014] UKUT 322 (LC), [2015] L.& T.R. 1

Baystone Investments Ltd v Perkins [2010] UKUT 70 (LC)

Brickfield Properties Ltd v Botten [2013] UKUT 133 (LC)

Camden LBC v Morath [2019] UKUT 193 (LC)

Cleary v Lakeside Developments Ltd [2011] UKUT 264 (LC)

FirstPort Services Ltd v Settlers Court RTM Co Ltd [2022] UKSC 1, [2022] 1 WLR 519

Gianfrancesco v Haughton LRX/10/2007 (2008, Lands Tribunal) (unreported)

Mawhood v Sinclair Gardens Investments (Kensington) Ltd LRX/59/2007 (2008, Lands Tribunal) (unreported)

Mayor and Burgesses of the London Borough of Tower Hamlets v Khan [2022] EWCA Civ 831, [2022] L.& T.R. 30

Morgan v Fletcher [2009] UKUT 186 (LC),[2010] 1 P.& C.R. 17

O (a minor), R (on the application of) v SoS for the Home Department [2022] UKSC 3, [2022] AC 255

Shellpoint Trustees Ltd v Barnett [2012] UKUT 375 (LC), [2012] 3 EGLR 115

Triplerose Ltd v Stride [2019] UKUT 99 (LC)

Weycroft, Weybridge Ltd v Wilson [2025] UKUT 64 (LC)

INDEX

Introduction 3

The background facts 4

The application 5

The statutory provisions 6

An overview of sections 35 and 38 8

The FTT’s decision 11

The grounds of appeal 11

Issue 1 – Did the FTT have jurisdiction to vary leases to provide for the recovery of legal costs as an administration charge? 12

Issue 2 – Was the FTT entitled, for the reasons it gave, to refuse to vary the leases to provide for the recovery of legal expenses from the leaseholder in default? 13

Issue 3 – Was the FTT entitled, for the reasons it gave, to refuse to vary the leases to provide for the recovery of legal expenses from all leaseholders as a service charge? 22

Consequences 24

Remaking the decision 24

Disposal 35