Leaseholders who pay variable service charges must be consulted before a landlord carries out qualifying works or enters into a long-term arrangement for the provision of services. However, in practice there are many reasons why a landlord may fail to comply with the necessary consultation requirements. A common reason is when work needs to be undertaken immediately in order to ensure the safety of residents or due to an emergency.
If this is the case, it may be possible for the landlord to apply to the First Tier Tribunal requesting that the consultation requirements be dispensed with retrospectively. The Tribunal will only grant dispensation when they are satisfied that it is reasonable to do so.
If the landlord has failed to comply with the consultation requirements and does not obtain a dispensation order, the contribution of each leaseholder for the works will be capped.
Daejan v Benson
The Supreme Court decision in the case of Daejan v Benson  illustrates that the Tribunal will examine in each case the extent to which the leaseholder has been prejudiced by the Landlord’s failure to comply.
The factual burden is on the leaseholder to identify how they have been prejudiced. If the leaseholder presents a credible case, the burden will be placed on the landlord to rebut it.
The Tribunal has wide powers to grant dispensation on appropriate terms and can impose conditions on the grant of dispensation. This can include a condition that the landlord pay the leaseholder’s reasonable costs incurred in connection with the dispensation application or limitations may be placed on the work or costs.
For this reason landlords are well advised to seek specialist assistance if they wish to apply for dispensation from the consultation requirements. If you have any questions or would like formal advice then please contact:
The Property Litigation Team at Dean Wilson LLP
01273 249276 email@example.com