A Southwark Council litigant-in-person leaseholder will lose her home after the council has decided to deploy a top legal team to reverse her £24,486 tribunal victory in the First Tier Tribunal.
Artist Michelle Baharier, 55, who is registered as disabled, declined to pay the bill to install a new communal boiler and heating system at Gilesmead in Camberwell. She successfully persuaded the First Tier Tribunal last year that the system it was an enhancement to what existed, not a repair, and was therefore not payable under the lease.
On this occasion, the property tribunal functioned as it originally intended as a low cost adjudication, with the council making its case with housing staff.
After its defeat, however, it has now engaged the services of Philip Rainey QC, with a hearing in the Upper Tribunal on December 11.
As the action began in the county court, it will determine costs, which in the event of defeat could mean the loss of Miss Baharier’s home.
The Leasehold Knowledge Partnership has urged Southwark Council to hold a meeting to mediate the dispute, involving housing staff and her MP Harriet Harman.
The alternative is the possibility of another Southwark Council leaseholder car crash in the courts, and possible additional expense if Miss Baharier is rendered homeless.
In 2014, LKP reported the disastrous litigation of Southwark Council leaseholder Farieda Chandoo, a former nanny of ex-Chancellor of the Exchequer George Osborne. Miss Chandoo has debts of around £110,000 after fighting and losing a £40,000 major works dispute with Southwark Council.
Miss Baharier’s dispute concerned a £1 million refurbishment of the communal heating system at Gilesmean, a site of 40 flats built in the 1960s.
Miss Baharier has lived in her flat since 1991, buying it under right-to-buy in 2008. Owing to the refurbishment, she now has four radiators and a large and intrusive hot water tank, which has been fitted into the sitting room of the two-bedroom flat.
The tribunal ruling (below) pondered at length the distinction between a “repair” to the existing system, or an “improvement”. This has been a crucial issue in several landmark section 20 cases.
Miss Baharier, who was assisted by the Citizens Advice Bureau, argued strongly that three individual contractors has estimated to fit a new boiler and four radiators in her flat, with £4,799 being the most expensive quote.
However, a communal boiler system is a more expensive prospect.
The tribunal concluded that Southwark Council had correctly consulted over the works.
But it concluded that Miss Baharier did not have to pay the £24,486.88p service charge.
It did warn, however, that it had no jurisdiction over how a county court might award costs.
In view of the fact that Miss Baharier sought justice from the property tribunal, and obtained it in her favour, it is wrong that she should now either gamble on an unequal bout against a QC which could leave her homeless. Or meekly surrender.
The irony is that Southwark Council loses either way: if Miss Baharier wins in the Upper Tribunal it will have wasted a lot of money on an expensive legal team. If it wins, it will end up having to rehouse one of its former council tenants who exercised the right to buy.
In July, Jim Fitzpatrick MP, a patron of LKP, told Parliament that the property tribunal “stinks” and lets down leaseholders repeatedly.
Tribunal ruling for Michelle Baharier: 17.08.2017 Judgement from First Tier Tribunal – LON-00BE-LSC-2017-0092