In brief summary, this case serves as a reminder that if a landlord is seeking dispensation, whilst dispensation may be granted by the Tribunal, it is entitled to make it conditional.
Three key take away are:
- In seeking dispensation, a landlord is asking for an indulgence and so can fairly be expected to bear the tenants' costs of the application.
- If all tenants suffer prejudice because a defect in the consultation process meant that one of their number did not persuade the landlord to limit the scope or cost of works in some respect, the FTT can make dispensation conditional on every tenant being compensated (and not just the individual who would have taken action if properly consulted). The reduction in the scope or cost of works would have accrued to the benefit of each tenant, and so, if dispensation is to be granted against them all, the totality of the prejudice should be addressed.
- A landlord may be liable to bear costs of the leaseholders incurred after the dispensation application had been determined. In this case, the landlord was required to contribute towards the reasonable costs of an expert to consider and advise the tenants. The Court commented on Lord Neuberger's recognition in Deajan Investments Ltd v Benson that "the circumstances in which a section 20ZA(1) application is made could be almost infinitely various, so any principles that can be described should not be regarded as representing rigid rules" and that the tribunal "has power to grant a dispensation on such terms as it thinks fit – provided, of course, that any such terms are appropriate in their nature and their effect".
This is an appeal by Aster Communities ("Aster") from the dismissal by the Upper Tribunal (Lands Chamber) (His Honour Judge Stuart Bridge) of an appeal from the First-tier Tribunal ("the FTT") (Judge E Morrison). It involves a challenge to conditions which the FTT attached when acceding to an application by Aster under section 20ZA of the Landlord and Tenant Act 1985 ("the 1985 Act") for dispensation from consultation requirements.