Is “Aster” the new “Daejan”? Joshua Dubin helps clients to resist their landlord's appeal

Aster Communities v Chapman and others [2020] UKUT 177 (LC)

Judgment published 15.07.2020

Joshua Dubin has helped his clients to resist their landlord’s appeal against the imposition of conditions that will enable them to instruct an expert to assess whether certain repair works are necessary.

The Upper Tribunal has upheld a decision to impose conditions when granting Aster dispensation from its service charge consultation requirements. Aster applied for dispensation because it omitted the total replacement of balcony asphalt on five low rise apartment blocks from its consultation notices. The First-tier Tribunal said that Aster had to pay the lessees’ costs of instructing an expert to advise them on the necessity of replacing all the balcony asphalt, and to pay their costs of the dispensation application. Aster argued that because the tenants didn’t get an expert assessment to show that they would suffer prejudice from the failure to include asphalt replacement in the consultation, they hadn’t shown prejudice – so weren’t entitled to demand conditions on the grant of dispensation – and couldn’t recover the costs of an expert they hadn’t yet instructed. They asked the Upper Tribunal to strike down the conditions.

The Upper Tribunal held that:

·       a tenant can discharge that factual burden of proving prejudice without calling any evidence

·       the dispensation application is not heard in a vacuum, so the FTT should have regard to what has happened previously between landlord and tenant, and what is likely to happen in the foreseeable future

·       the tenant should not be required to prove that the proposed works are inappropriate or too expensive before the FTT imposes conditions, otherwise the process of dispensation would be frustrated

·       conditions requiring landlords to pay money to tenants are not limited to expenses already incurred in the application, but can include future costs, such as the instruction of an expert.

The Tribunal refused to interfere with the conditions.

This is probably the Upper Tribunal’s first opportunity since Daejan Investments Ltd v Benson [2013] UKSC 14, [2013] 1 WLR 854 to consider the First-tier Tribunal’s exercise of the discretion under s.20ZA, Landlord &Tenant Act 1985, to impose conditions when dispensing with service charge consultation requirements.

The full judgment can be found here.