… why are these appeals taking so long?
Another success for Justin Bates: he has managed to delay No. 1 Deansgate – central Manchester’s most fancy residential address – from achieving right to manage for nearly two years.
Residents – who include footballers Ryan Giggs and Phil Neville, Corrie star Helen Worth and Take That singer Jason Orange – have spent £30-40,000 fighting the RTM action.
They finally won on November 22 after the Upper Tribunal (Lands Chamber) threw out Bates’s objections.
Provided the freeholder, TRW Pensions, does not fight on to the Court of Appeal, the 82-flat building will achieve right to manage in 90 days.
“We are just so pleased that this is all over,” says Steve Birkbeck, for the residents. “It has taken us three years and hours of work to fight these people. The delay to hear this appeal is just scandalous.”
No.1 Deansgate is run for the pension fund by CBRE Global Investors, which decided, after careful consideration, to appoint itself in the form of CBRE Asset Management as managing agent.
The residents were furious with what they saw as bad and expensive management and they won back more than £100,000 in service charges after a string of complaints that went to LVT. The site is currently managed by Living City, which is considered an improvement.
On this occasion, Justin Bates sought to block right to manage on the grounds that the building did not qualify as a self-contained building as it was attached to the one next door by some weather boarding.
This had been put up to prevent old cans and leaves from accumulating between the two buildings.
To dispute this point, the residents had to appoint their own barrister, Martin Dray, at £8,000 plus VAT.
When the LVT originally granted right to manage it refused the freeholder leave to appeal, but this was granted by the former president of the Upper Tribunal, George Bartlett, who noted that there “was a realistic prospect of success and the issue was important”.
Judge Nicholas Huskinson disagreed, noting in his ruling: “I was told that if the weathering features between the building and the neighbouring buildings were removed then there would be a gap between the buildings down which one could notionally drip a pebble so that it fell vertically to the ground between the buildings.”
A good deal of argument ensued between the lawyers as to whether a clothes line or a piece of bunting between the two buildings would have up-ended the right to manage.
Doubtless the legal profession had a great deal of fun at everyone else’s expense, and the full ruling on this utterly pointless litigation is below.
When the residents finally obtain their right to manage – which was given to them by Parliament in the Commonhold and Leasehold Reform Act of 2002 supposedly as a no-fault, simple process – they will appoint Block Property Management, under Mark Habib, to manage the site.
“No.1 Deansgate has some of the most expensive places to live in central Manchester,” said Birkbeck. “But I live on the first floor in a flat that cost £250,000.
“Most of us are just ordinary people with jobs in the city. We should never have been hit for ridiculously high service charges.
“And what does are experience tell people about the process of obtaining right to manage?”
The full ruling can be read here:
Well done and congratulations No 1 Deansgate on yet another blow to the legal gravy train……
I am worried now though, does that mean that if there is a hornets nest attached to the buildings wanting a RTM it won’t get approved?…. sounds rediculous doesn’t it! but so is objecting because of a piece of weather boarding….. More reasons for a common hold tenure for english property.
While it was tenous premise, verticalty is essential in order to sever interests. The gravy train did rather well out of this. Commonhold will not make one bit of difference to these situations.
One of the biggest changes we could make on this is the award of costs. While CLRA allows landlords costs, a Tribunal ought to be able to say ” a weatherboard? Really? pay your own costs and theirs”.
It is absolutely right that verticality and appurtenant premises may need resolution, but a new approach to costs might help by making it a huge commercial risk to challenge on such a spurious basis.
Mr Bates must win an award for his services to pedantry soon. The idea of a large block of flats being deemed to be joined to another building because of bit of weather board seems his best so far! This follows on from his various bizarre arguments in other RTM cases. Was it not also Mr Bates who argued that an RTM should fail simply because they did not include the word ‘RTM’ in the company title, or that somehow a consultation was insufficient since the RTM has not contacted all flats, despite the fact that the occupant may have passed away?
The problem often seems to be weak tribunal chairman, and perhaps an overly a pliant Upper Tribunal appeals system, which allow barristers for landlords to drag things out on de minimis issues. Quite why President Bartlett thought there was a realistic prospect of success in this case seems most odd given the final decision. Almost as strange as Mr Bates (we assume it was him) taking the Regent Court case all the way up to the Court of Appeal.
In our case we were treated to hours of Bates arguing that various costs be excluded from our first s27 case. Bates argued that somehow individual items with a fixed charge constituted non-variable charges under the terms of the Act and therefore outside the Tribunals jurisdiction. Had we a slightly more able Chairman he should have kicked that argument into touch immediately. We also spent a long hour at the end of the hearing waiting for a full list of applicants to be found with Bates convincing the Chairman that Tribunal rules meant that the list could not be provided after the hearing so any site visit could not start until the list was found.
Bates’ best effort for us was his apparently well informed discourse on “pony grooming”. He sought to advise the Tribunal of the breadth given to landlords on costs which might be put through as service charges. Bates explained that as long as the landlord could show it reasonable to incur such a charge even “pony grooming” might become payable by the tenants. At the time we thought this perhaps a barrister’s joke to see how far he could push a solicitor chairman without being told to stop taking the mickey out of the court. Instead our chairman meekly acknowledged the “legal” point.