The new Pre-Action Protocol for Debt Claims came into force in October last year requiring anyone who is owed money by an individual (not a business) to follow the prescribed process before commencing court action against that individual. WHY IS...
A long leasehold tenant has had mixed fortunes in opposing a charge for more than £55,000 after her council landlord undertook a major programme of repairs to the block in which she lives.
Under the terms of her lease, the council was required to keep the exterior of the building in good repair and the tenant was obliged to pay the appropriate proportion of the costs by way of service charge.
It became clear in the mid-1990s that a great deal of work was needed to repair the block and its roof. Among other work, the council replaced the existing wooden windows with metal framed ones (which required extensive works to the exterior of the building and cladding work) and replaced the block's flat roof with a pitched roof. She argued that these costs were not properly to be borne by the tenants.
The works were so extensive that the tenant's contribution to them was assessed at more than £55,000 and she was invoiced that amount. The argument went to the Upper Tribunal, which ruled that the cost of the roof was recoverable by the council under the service charge, but the costs incurred for the windows and cladding were not. The costs had not been adequately discussed with tenants and the work done was in the nature of an improvement to the properties, not repairs.
It was significant that the windows, though suffering from inherent design problems which made their replacement a good idea, were not actually defective when replaced and the replacement windows installed by the landlord were not the least expensive that could have been used.
Both sides appealed to the Court of Appeal, which upheld both the decisions.
Lord Justice Lewison commented, "It must always be borne in mind that where the landlord is faced with a choice between different methods of dealing with a problem in the physical fabric of a building (whether the problem arises out of a design defect or not) there may be many outcomes each of which is reasonable…if the landlord has chosen a course of action which leads to a reasonable outcome the costs of pursuing that course of action will have been reasonably incurred, even if there was another cheaper outcome which was also reasonable."
The issue as regards the windows, however, was the nature of the work done: the tenants were not liable for improvements.