Whether alterations to works specification invalidates statutory consultation
In Reedbase Ltd and another v Fattal and others , the leaseholders owned penthouse flats featuring tiled roof terraces. The landlord proposed undertaking repair works to the roof, suggesting that tiles would be laid directly onto the roof’s waterproofing layer. Estimates were obtained and the landlord notified tenants as required by the consultation requirements of the Landlord and Tenant Act 1985.
In changing the type of tile to be used, the method to be used in laying them also altered so that the landlord was required to erect an additional ‘pedestal’ system above the waterproof layer. This had not been factored into the earlier estimates or consultation. The leaseholders argued that the revised layout resulted in a poor roof terrace area. At first instance, the judge concluded that the terrace was ‘stunning’, with no breach by the landlord found. The leaseholders took the case to appeal, arguing firstly that the lack of proper consultation as a result of a variation in the works limited the landlord’s costs recovery (to £250.00 per flat) and secondly that by replacing the tiles, the landlord had not made good damage caused to the leaseholders’ original tiles.
The Court of Appeal dismissed the appeal, finding in favour of the landlord. The leaseholders were found to have received sufficient information about the new system, having known and approved of it, and the difference in cost was minimal when compared to the overall cost of the works. The leaseholders’ position was no worse as a result of the change in works or lack of consultation in respect of the cost of the ‘pedestal’.
In respect of ‘making good’, the Court held that landlords may act reasonably in restoring property where it is justified, entitling them to replace with something different if necessary. In this case, the landlord had used new and good quality tiles, which was found by the Court to be sufficient.
Advice and action for landlords
The Reedbase case is useful for many landlords undertaking repair works. Whilst in practice we find that the consultation requirements are well-managed by landlords and managing agents, it is likely to cause unnecessary delay, additional cost and leaseholder frustration where fresh consultation is required to approve a small variation to works such as this.
It is helpful guidance that, where the cost of variations are comparatively minimal and the leaseholders are fully aware of the situation, as long as leaseholders have received sufficient information a fresh consultation is not always necessary.
The leaseholders were found to have received sufficient information about the new system, having known and approved of it, and the difference in cost was minimal. The Court of Appeal dismissed the appeal.