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Brethertons wins Landmark Case in Upper Tribunal (Lands Chamber)

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Admiralty Park Management Company Ltd v Ojo [2016] UKUT 0421 (LC)
Brethertons were instructed by Admiralty Park Management Company Limited, in connection with an appeal to the Upper Tribunal (Lands Chamber), from the First-tier Tribunal (Property Chamber).

On 25th June 2015, the FTT determined that the leaseholder of Flat 125 Frobisher Road was not liable to pay service charges for the years 2010 to 2014 for services provided by the appellant, because the service charges had not been calculated in accordance with the terms of the lease (which, interestingly, was an objection raised by the FTT at the hearing and not by the leaseholder). The landlord was refused permission for an adjournment in order to respond to the point raised by the FTT, and the FTT ultimately found in favour of the leaseholder. The appellant appealed to the Upper Tribunal (Lands Chamber).

The appeal raised three issues: i) procedural irregularity; ii) estoppel by convention; and iii) the amount of the leaseholder’s liability. 

The appellant relied on Birmingham City Council v Keddie [2012] UKUT 323 (LC), in which the UT determined that, as a general rule, the (then) LVT was not entitled to raise submissions of its own volition and was limited to resolving issues which had been identified by the parties (save in exceptional circumstances, in which case the parties should be given the opportunity to respond to those new points). The Deputy President of the UT appears to have departed from that approach in Admiralty Park, suggesting that the FTT should not be constrained by unnecessary formality and ought to be able to raise points which are relevant to the proceedings, so long as the parties are given the opportunity to respond to those points. In this case, the appellant was not given the opportunity to respond, which was plainly procedurally unfair.

Turning to the second issue, the UT found that the leaseholder had a number of opportunities to raise objections to the method of demanding and apportioning the service charges. By failing to raise any objections for many years, he had effectively acquiesced to those methods, and was estopped by convention from challenging the service charges on those grounds.

As a result, the leaseholders’ liability was not reduced. 

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