BIR/00CS/LIS/2018/0028 Court Reference : C8DT576A (County Court at Birmingham)
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FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : BIR/00CS/LIS/2018/0028 Court Reference : C8DT576A (County Court at Birmingham) Property : 31 View Point, Tividale, West Midlands B69 1UU Applicant/Claimant : Greenbelt Group Limited Represented by Mr John Aldis of Counsel instructed by Optima Legal Services Respondents/ : (1) Mr Andrew Thomas Lane Defendants (2) Ms Joanne Sarah Lane (previously Bourne) In person but speaking through Mr Andrew Thomas Lane Type of Application : Monies due under Freehold Covenants on Transfer from the County Court at Birmingham by Order of District Judge Kelly Tribunal Judge sitting : Judge Anthony Verduyn As a Judge of the County Court Tribunal Valuer : Mr David Satchwell FRICS Member as an Assessor Under CPR Part 35.15 Date of Hearing : 7th November 2018 Date of Decision : 10th January 2019 ________________________________________________ DECISION ________________________________________________ © CROWN COPYRIGHT 2019 BACKGROUND 1. These proceedings were issued in the County Court Business Centre as long ago as 4th February 2016, and have had an interesting procedural journey. The claim for £854.60 was amended pursuant to an Order of District Judge Loyns dated 28th February 2016 to £1,172.68. The claim was initially transferred to the County Court at Dudley and directions were given on 27th November 2017. Then by Order of District Judge Riley dated 5th March 2018, the proceedings were transferred as Business and Property Work to the County Court at Birmingham. On 21st May 2018, District Judge Kelly ordered, pursuant to the Civil Justice Council pilot scheme for flexible deployment and of her own initiative, that it be transferred to the First-tier Tribunal, Property Chamber, Residential Property division to be decided by a Tribunal Judge sitting as a Judge of the County Court (under Section 5(2)(t) and (u) of the County Court Act 1984 as amended by Schedule 9 to the Crime and Courts Act 2013), sitting with a valuer member of the Tribunal as assessor. Directions were given by Regional Judge Jackson on 24th May 2018 regarding statements of case and witness evidence. Times were subsequently extended for compliance with those directions. A final hearing was listed before me, with site view, on 7th and 8th November 2018, but the hearing was concluded on the first day. This is my reserved decision and judgment. 2. At the outset of the hearing, and for the avoidance of doubt, I confirmed that I was hearing this case in my capacity as a Judge of the County Court, meaning as a District Judge in this instance. Furthermore, the case appearing not to have been allocated, was now allocated by my order to the Small Claims Track, with the flexibility of procedure consequent upon that allocation under CPR Part 27.8. Consistent also with Tribunal procedure and CPR Part 27.8(4), evidence was not taken on oath. I also reminded those attending that Mr Satchwell FRICS, was sitting with me only in his capacity as an assessor under CPR Part 35.15. He has had no part in this decision, which is purely my own, and he has assisted me as an assessor through his attendance at trial and only where identified below. Even then, his assistance has been purely in relation to matters within his expertise and I have decided to what extent (if any) to accept his assessment. 3. The Applicant was represented at the hearing by Mr John Aldis of Counsel and the Respondents, Mr and Mrs Lane, by Mr Lane as a lay representative and litigant in person. No objection was made by either party to the procedure I outlined and, therefore, adopted. 4. The claim relates to sums due under freehold covenants for maintenance of amenity areas. It is similar to a service charge dispute in long leases that regularly are determined by the Tribunal and, hence, the Order made to transfer it to the Tribunal for case management and hearing. Whilst there is necessarily a similar focus to service charge cases on the precise provisions being relied upon, there is no over-arching statutory framework for resolving these disputes in the Tribunal akin to the Landlord and Tenant Act 1985 in respect of leasehold properties. Furthermore, the Court does not have a free-ranging jurisdiction merely to act as it thinks fit, but must apply established legal principles. The effect of this is that some of the complaints of the Respondents simply cannot be determined before me in the manner they would wish. 5. The issues between the parties are set out in their Statements of Case. 6. On 7th September 2001 the Respondents had transferred to them from Bellway Homes Limited 31 View Point at a price of £111,500 (this is the “Transfer” referred to below). As part of the transfer Deed they entered into covenants set out therein in the Fourth Schedule. Clause 2 is the key provision and termed the “Covenant” below: “The Transferee [i.e. the Respondents] hereby covenants with the Transferor and its successors in title to the Amenity Area to pay the Annual Sum (plus value added tax applicable thereto) annually in advance on the <blank> (or on such other date or dates as may be selected by the Transferor or its successors in title and whether annually or for any lesser period) in each year … and PROVIDED ALWAYS that: - (a) for the first five Years calculated from the Initial Date [i.e. date of completion of the sale of the first dwelling on the Site] the Annual Sum shall be the Initial Sum [i.e. £60] together with in addition an increase (the “Inflationary Increase”) to reflect the effect (if any) of inflation from the Initial Date … (b) in the sixth year calculated from the Initial Date and in any Year thereafter the Transferor may (in its absolute discretion) require the Transferee pay in lieu of the Initial Sum together with the inflationary increase the Actual Share subject always to the provisions of paragraph 2(c) (c) in Any Year in respect of which the Transferee is required to make payment by reference to the Actual Share (instead of the Initial Sum with in addition the Inflationary Increase) then the Actual Share shall be limited to 150% of the Annual Sum payable in respect of the fifth Year prior thereto so that (by way of example only) the Actual Share payable by the sixth Year calculated from the Initial Date will be limited to 150% of the Initial Sum payable in the first Year after the Initial Date and the Actual Share payable for the eleventh Year calculated from the Initial Date shall be limited to 150% of the Annual Sum payable in respect of the sixth year calculated from the Initial Date (d) The Transferor and/or its successors in title may at any time select a new or different Due Date in relation to the Property and may also in their discretion demand payment of a proportion of the Annual Sum for a lesser period than one year” Clause 1 included the following definitions: “AMENITY AREAS means those parts of the Transferors development from time to time (and whether owned by the Transferor or its successors in title or not) set out or intended to be set out as woodland play or landscaping areas (those currently intended as such being shown edged blue and cross hatched green on the plan marked B annexed hereto)” “ANNUAL MANAGEMENT AND MAINTENANCE COST means the total of the costs and expenses incurred in any Year in connection with the management and maintenance of the Amenity Areas in accordance with the obligations to the Transferee hereafter set out and/or the cost and expense incurred in connection with the enforcement of the performance or observance by all owners and occupiers of the Site of their obligations and liabilities in respect of these amenity Area Covenants and such costs and expenses shall include without limitation all reasonable fees charges and expenses incurred (including fees of professional advisers, agents or bodies instructed or employed in connection therewith and the costs and expenses of employing staff) whether directly or indirectly and reasonable estate management remuneration and charges incurred” “ACTUAL SHARE means the pro-rate share applicable from time to time to the Property of the Annual Management and Maintenance Costs …, calculated by reference to the Annual Management and Maintenance Costs of all dwellings constructed or permitted to be constructed on the Site …” 7. The Applicant asserts that it is the successor in title to Bellway Homes Limited in respect of the Amenity Areas, registered with HM Land Registry as “Land at Darby’s Hill, Tividale” under title number WM819619. The transfer to the Applicant was registered on 16th January 2004. The Respondents cannot gainsay the registered title and accept that it encompasses the Amenity Areas, so no issues arise in respect of title. 8. The Applicant asserts that, having had transferred to it the Amenity Areas, it has the benefit of the Covenant and can make demand for sums payable under it. The Respondents disputed this in the Court proceedings, because the Applicant was not the original Transferor or beneficiary of the Covenant. In their Statement of Case as directed in the Tribunal, the objection was more that the Respondents were not informed that the Applicant had moved from being the contractor or agent of Bellway Homes Limited and become the registered proprietor of the Amenity Areas. 9. There is nothing in these points for the Respondents. Bellway Homes Limited were legally allowed to dispose of its freehold interest in the Amenity Areas, whether to the Applicant or any third party, and that they did so is demonstrated by the indisputable registered title.