Donath v Trustees of 2nd Duke of Westminster Will Trust

Scheme of management – Section 19 of Leasehold Reform Act 1967 – Variation – Scheme of management for force in estate where applicant resident – Applicant applying to vary scheme to require respondent landlords to enforce it more rigorously – Whether section 19 permitting imposition of duties on landlords as opposed to enfranchising residents – Application refusedThe applicant was a resident of the Grosvenor Belgravia Estate, of which the respondents were the landlords. The estate was subject to a scheme of management under section 19 of the Leasehold Reform Act 1967. Such schemes conferred powers on landlords in respect of the maintenance of the character and standards of an estate, thereby compensating for the loss of mutual leasehold covenants resulting from lessees’ acquisition of the freehold of their properties under the leasehold enfranchisement provisions of the Act. The scheme that governed the estate had been adopted by the approval of the High Court in 1973, at which time only 14 properties had been enfranchised; that figure had subsequently risen to 100.The applicant complained that the respondents had failed to deal with residents’ breaches of the scheme, such that properties had fallen into disrepair or been converted to office use. He made applied to the leasehold valuation tribunal (LVT) under section 19 to vary the scheme of management so as to require the respondents to enforce it with more vigour, by placing an express obligation on the respondents to use their best endeavours to maintain established standards in the area and to use all available powers to ensure that breaches were remedied.The respondents opposed the application on the grounds that: (i) an application to vary the scheme could be made only by the landlord under that scheme; (ii) the tribunal had no power to impose amendments to which the landlord did not agree; and (iii) section 19 was intended to preserve the powers held by a common landlord and did not permit a property owner who had enfranchised to impose positive covenants on the landlord.Held: The application was refused. Section 19 of the 1967 Act did not confer jurisdiction on the LVT to impose duties on a landlord by varying a scheme of management. It referred to the retention of powers by landlords and to the reasonableness of imposing obligations on tenants but did not refer to any duties or obligations relating to the landlord: see section 19(1) and (3). The obligations that the section anticipated were those placed on enfranchising owners and future owners, not on the common landlord. Section 19 was intended only to preserve the landlord’s position as it had been before the Act conferred on tenants the right to enfranchise and not to impose on the landlord any additional duty to preserve the nature and amenity of the estate. Accordingly, the type of variation that the applicant sought could only be achieved with the landlord’s consent.That conclusion disposed of the application, and the questions of whether an owner or group of owners within an estate could in any circumstances apply for a variation, and whether a landlord’s consent was required to any such variation, remained open.The applicant appeared in person; Anthony Radevsky (instructed by Boodle Hatfield) appeared for the respondents.Sally Dobson, barrister