Cases - Peter Cain v Mayor and Burgesses of the London Borough of Islington
Record details
- Name
- Peter Cain v Mayor and Burgesses of the London Borough of Islington
- Date
- [2015]
- Citation
- UKUT 542 (LC)
- Legislation
- Keywords
- Service charges – admission or agreement – Landlord and Tenant Act 1985, s. 27A (4) and (5)
- Summary
-
The appellant lessee appealed the decision of the First-tier Tribunal that by virtue of section 27A(4) of the Landlord and Tenant Act 1985 ('the 1985 Act'), and notwithstanding 27A(5) of 1985 Act, he was to be treated as having agreed or admitted his liability to pay the service charge and the amount. Consequently, it followed that he was debarred from making an application under s.27A of the 1985 Act.
An agreement or omission may be express or implied or inferred from the facts and circumstances. In either situation the agreement or admission must be clear and based on the objectively ascertained intention of the tenant. Such intention may be express or implied or inferred from the conduct of the tenant – usually an act or a series of acts or inaction in the face of specific circumstances or even mere inaction over a long period of time or a combination of the two.
In the absence of s.27A(5) of the 1985 Act and subject to the surrounding circumstances, the First-tier Tribunal could imply or infer from the fact of a single payment of a specific sum demanded that the tenant has agreed or admitted that the amount claimed and paid was properly payable. This was possible in circumstances where there had been a series of payments made without challenge or protest. It would be generally inappropriate to make such an implication or inference from a single payment because it could not be said that the conduct of the tenant was sufficiently clear.
It would offend commonsense for a tenant who without qualification or protest had been paying a series of demanded service charges over a period of time to be able to deny that he has ever agreed or admitted to that which he has previously paid without qualification or protest.
Appeal dismissed.