Cases - Windermere Marina Village v (1) Ian Wild (2) Gillian Lesley Barton and others
Record details
- Name
- Windermere Marina Village v (1) Ian Wild (2) Gillian Lesley Barton and others
- Date
- [2014]
- Citation
- UKUT 0163 (LC)
- Legislation
- Keywords
- Service charges – Apportionment – fair apportionment – surveyors – Landlord and Tenant Act 1985, sections 18, 19 and 27
- Summary
-
The appellant freeholder appeals against the decision of the LVT, in which the LVT substituted its own apportionment of the costs of services payable by the tenants of 26 dwellings at the Windermere Marina Village (‘the Marina’) for a previous apportionment determined by a surveyor appointed by the appellant, which owned the freehold interest in the marina.
The principal issue to be determined was whether section 27A(6) of the Landlord and Tenant Act 1985 ('the Act’), rendered void the agreement in the lease that the landlord’s surveyor’s decision on the apportionment of the service charge was to be final and binding.
The issue of principle concerned only cases where the parties had not agreed the apportionment of liability at the commencement of their lease, but had left that question to be determined at a later date by a third party.The question therefore raised by the appeal was whether section 27A(6) of the Act rendered void an agreement that the apportionment of service charges was to be in accordance with a determination of a third party whose decision was to be final and binding.
Section 27A(6) of the Act rendered void any agreement by the tenant which excluded the jurisdiction of the First-Tier Tribunal on questions which could otherwise be referred to it for determination. In an anti-avoidance provision such as section 27A(6) of the Act, an agreement will ‘purport to’ provide for an outcome if it has the effect of providing for such an outcome.
In the present case, the question to be determined was what proportion of the expenses incurred by the appellant was to be paid by the respondents. By paragraph 2 of the schedule to their leases the respondents had agreed that they were to pay such proportion as was determined by the appellant’s surveyor, whose decision was to be final and binding. That agreement was void because it had the effect of providing for the manner in which an issue capable of determination under section 27A(1) of the Act was to be determined, namely by a binding decision of the appellant’s surveyor.