In an important decision, the Upper Tribunal (Martin Rodger QC, Deputy President) has held that the proper construction of the consultation requirements is that a superior landlord intending to carry out works or enter into a qualifying long term agreement must give notice to each of its direct tenants of a dwelling, and each of its own tenants’ sub-tenants of a dwelling or dwellings who is liable to contribute towards the costs of the works. Consultation is therefore required with any intermediate tenant of premises which include a dwelling and with all sub-tenants of individual dwellings or of larger premises which include at least one dwelling.

The decision in Various Occupational Leaseholders of Foundling Court and O’Donnell Court, Brunswick Centre, London v (1) Camden LBC; (2) Allied London (Brunswick) Ltd and others [2016] UKUT 366 (LC) marks a significant departure from the conventional approach of consultation ‘along the chain’.

The Deputy President suggested that “The simplest and cheapest approach would be to deliver a consultation notice addressed to “the leaseholder” to each flat in the building or development” but “The better course may be for the superior landlord to obtain the necessary information by asking the intermediate landlord (or intermediate landlords) to provide it.” Alternatively, the superior landlord could apply for a dispensation from the consultation requirements either before carrying out the work or entering into the agreement or after doing so if the issue of consultation subsequently became contentious.

The Decision also provides guidance as to the terms on which a first-tier tribunal may grant dispensation and the persons to whom notice of a dispensation application should be given.

In the same case, the Upper Tribunal considered two strike out applications and gave guidance on whether delay amounts to an abuse of process. It also considered whether a security agreement was a qualifying long term agreement (“QLTA”). In so doing, it left open the question of whether an agreement with a break clause could be a QLTA.

A copy of the Decision is available here.