Landlord and tenant – Appointment of manager – Notice – Section 22 of Landlord and Tenant Act 1987 – Lessee sending notice to appellant landlord of intention to apply to First-tier Tribunal to appoint manager of premises – FTT appointing manager – Whether respondent failing to particularise breaches of covenant in notice – Whether notice giving appellant sufficient time to remedy disrepair and infestation – Appeal dismissed
A property known as St Mary’s House, London Road, Sheffield, was a former office block converted to residential flats by the appellant around 2014. Planning permission for the development required that it be used solely for student accommodation. The appellant remained the freeholder of the building, and let the flats on long leases to investment purchasers. The leases provided that the landlord was responsible for the repair and maintenance of the building in return for a service charge.
Initially the lettings to students were arranged by the appellant for the long leaseholders pursuant to a management agreement entered into when the leases were granted but in May they changed to a management company.
Landlord and tenant – Appointment of manager – Notice – Section 22 of Landlord and Tenant Act 1987 – Lessee sending notice to appellant landlord of intention to apply to First-tier Tribunal to appoint manager of premises – FTT appointing manager – Whether respondent failing to particularise breaches of covenant in notice – Whether notice giving appellant sufficient time to remedy disrepair and infestation – Appeal dismissed
A property known as St Mary’s House, London Road, Sheffield, was a former office block converted to residential flats by the appellant around 2014. Planning permission for the development required that it be used solely for student accommodation. The appellant remained the freeholder of the building, and let the flats on long leases to investment purchasers. The leases provided that the landlord was responsible for the repair and maintenance of the building in return for a service charge.
Initially the lettings to students were arranged by the appellant for the long leaseholders pursuant to a management agreement entered into when the leases were granted but in May they changed to a management company.
Part II of the Landlord and Tenant Act 1987 enabled the FTT, on the application of a tenant of a flat, to appoint a manager of premises containing two or more flats. The tenant had to show that there was something wrong with the management of the premises and that it was just and convenient to appoint a manager.
On 23 December 2022, the respondent, a long lessee of a flat, sent the appellant a notice under section 22 of the 1987 Act which stated, as required, both the grounds on which the FTT would be asked to make an order and the matters to be relied upon.
The FTT subsequently appointed a manager pursuant to section 24 of the 1987 Act, on the respondent’s application. The appellant appealed.
Held: The appeal was dismissed.
(1) The section 22 notice told the landlord what was said to be wrong before his valuable right to manage was taken away from him. The purpose of the requirement in section 22(2)(c) to “specify… the matters that would be relied on by the tenant for the purpose of establishing those grounds” was to inform the landlord of what the tenant complained of. The answer to the question whether a particular notice achieved that purpose was inevitably fact specific. There was no precise requirement in the statute; the instruction to “specify… the matters” indicated that what needed to be said was what the landlord needed to know.
(2) Here, the respondent’s notice did what it was supposed to do. It stated that the landlord was in breach of covenant and alerted the appellant to the fact that the disrepair and rat infestation of which he was already aware were among the reasons why it was said that he was in breach of his obligations.
Although section 22 provided that no application could be made if no notice was given, if there were deficiencies within the notice the FTT could still exercise its discretion to make an order (section 24(7)). But none of that arose in the present case because there had been no failure to follow the statutory procedure and the FTT was correct to find that the notice was valid: A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] EGLR 36 considered.
(3) The appellant argued that the notice did not give him sufficient time to remedy the disrepair and the infestation, 14 days being insufficient, especially in the holiday season.
However, all that the statute required was that a reasonable time to remedy the breach had to elapse between service of the notice and the exercise of the right of re-entry or forfeiture. A reasonable time must have elapsed for remedying the breaches once it was clear that they were not proposing to take the necessary steps to remedy the breach but were committing further breaches.
(4) The test for validity of the notice was whether a reasonable time was allowed; but what was a reasonable time was fact specific, not only to the nature of the work but to the facts of the case including the behaviour of the parties. In fact, as the FTT found, the appellant carried out work only after an improvement notice had been served by the local authority: Billson v Residential Apartments Ltd [1992] 1 EGLR 43 and Shirayana Shokuan Co Ltd v [2005] EWHC 2589 (Ch) considered.
It did not take 14 days to contact a pest control company, and in that sense the time allowed in relation to the infestation was reasonable. Furthermore, where the recipient of the notice did nothing to deal with the infestation or the disrepair during the notice period, nor during the longer period that intervened before the application was made to the FTT, nor for some months thereafter, it could not be said that the notice did not give him a reasonable time to remedy the breaches of covenant unless he could show that it was impossible for him to do anything during that time, which he did not make the slightest attempt to show.
The period given made no difference to what he was going to do, which was what the FTT meant when it said that it was not a detriment to him.
Accordingly, the FTT reached the right conclusion. Its reasoning could have been better articulated but made it clear to the appellant why his argument about the time allowed carried no weight.
(5) In any event, the court would have had no hesitation in setting aside and re-making the FTT’s decision with the same outcome, exercising the discretion conferred by section 24(7) of the 1987 Act. It was clear both that the respondent proved that the property was in a very poor state as a result of the appellant’s poor management, and that it was just and convenient for an order to be made, and there was no appeal against those two core conclusions by the FTT.
The notice itself was not drafted in the way a lawyer would have done, but it made perfectly clear, in the tenants’ own words, what the problems were said to be and why the FTT was going to be asked to appoint a manager, and none of the material relied on was the slightest surprise to the appellant. If the notice had in any way fallen short of what section 22 required it would have been entirely appropriate to make an order nonetheless.
Katie Gray (instructed by Ashfords LLP) appeared for the appellant; Anthony Verduyn (instructed by Trowers & Hamlins LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Ata v Sinclair
