Cases - BDW Trading Limited, Comet Square Phase 2 Block Management Co Ltd v South Anglia Housing Ltd
Record details
- Name
- (1) BDW Trading Limited (2) Comet Square Phase 2 Block Management Co Ltd v South Anglia Housing Ltd
- Date
- [2013]
- Citation
- EWHC 2169 (Ch)
- Legislation
- Keywords
- Service charges – Qualifying Long term Agreements – Consultation – Landlord and Tenant Act 1985, section 20, section 20ZA, section 20(1) – Service Charges (Consultation Requirements) (England) Regulations 2003
- Summary
-
The First Claimant developer (BDW) built an estate which included a block of 4 flats. Two of the blocks were held on an underlease granted to the Defendant ('SAH'). BDW contracted with a 3rd party to provide hot water and electricity to the flats for a period of 25 years. This was a qualifying long term agreement (QLTA) under section 20 of the Landlord and Tenant Act 1985 ('the Act'). Under the QLTA B was to pay a monthly charge for this service, which was ultimately invoiced to the lessees of the flats by way of the service charge.
At the time the agreement was entered into there were no lessees occupying the flats. If the consultation requirements did apply then in the absence of any tenants, consultation was impossible. BDW therefore had to seek dispensation from the LVT pursuant to section 20(1) of the Act, failing which it could not recover more than the appropriate amount pursuant to section 20(1) of the Act.
BDW submitted that section 20ZA did not apply because it referred to 'the landlord', denoting an existing tenancy. Further, it would not be a sensible construction of the provision that an owner of land or a building would be required to consult when there was no lessee to consult with. SAH submitted that landlord must include future or prospective landlords; otherwise there would be a major gap in the legislation. Further, if consultation was impossible there was provision for the LVT to dispense with it on application.
It was held that sections 30 and 36 of the Act defined 'landlord', 'tenant', 'lease' and 'tenancy' in conventional terms with no extended meaning. It was inconceivable that if the draftsmen had intended the legislation to apply to agreements entered into when the property was not yet built, or not yet let, he would not have so provided in clear terms. Further, if it had been intended that potential future landlords would be obliged to seek dispensation from the LVT, this would not have been explicitly provided for. Yet further, one would have expected provision for regulations to be issued governing the procedure before the LVT on such a one-sided application.