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Damages in lieu of injunction
This page contains the details of two cases
Jurisdiction to deal with boundary disputes.
Time limits for applications to the Tribunal - applications sent by post.
Tribunal taking points on its own initiative - fairness to the parties
Costs - unreasonable behaviour
The Upper Tribunal (Lands Chamber) site provides cases and other materials from the Lands Chamber. To access the site click
To search for case reports in the Tribunal click
Jurisdiction of the First Tier Tribunal
Bean v Katz
 UKUT 168 (TCC)
The First-tier Tribunal has jurisdiction to examine the title to the land concerned, to decide where the boundary lies, and to direct the registrar to give effect to the application.
If that were not so, then the First-tier Tribunal would be unable to follow the scheme of the Rules, which required a determined boundary application to be assessed not only on the accuracy of the plan (r119(1)(a) of the Land Registration Rules 2003) but also on whether the line on the plan was in fact the boundary (r119(1)(b)). It followed that where the requirement under r119(1)(b) was in issue the First-tier Tribunal could examine the evidence and decide either that the application succeeded because the line claimed was the boundary, or that it failed because the line claimed was not the boundary. It was therefore inevitable that the First-tier Tribunal would make findings about the position of the boundary in order to give reasons for its decision.
Time limits - application sent by post
Salehabady v Trustees of the Eyre Estate
 UKUT 60 (LC)
The relevant date for the purposes of when an application under s48(2) of the Leasehold Reform Housing and Urban Development Act 1993 is made is the date that it was posted to the Tribunal, correctly addressed and stamped.
Relevant statutory provisions
Section 48(2) of the LRHUD Act 1993 provides that:
“(2) Any application … must be made not later than the end of the period of six months beginning with the date on which the counter-notice or further counter-notice was given to the tenant.”
Rule 26(1) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provides that:
“(1) An applicant must start proceedings before the Tribunal by sending or delivering to the Tribunal a notice of application.”
A leasee (T) was potentially entitled to an extended lease under Chapter II of Part I of the LRHUD Act 1993. The relevant notice and counter-notice were given. The 6-month period for T to make his application to the Tribunal expired on 21 April 2016. On 18 April 2016 T’s legal representative posted an application to the Tribunal by first class. The application was not received by the Tribunal until 9 May 2016.
At a paper hearing to determine jurisdiction, the First-tier Tribunal (FTT) held that it had no jurisdiction to hear the claim. It also concluded that there was no evidence before the Tribunal that T’s representative had posted the application on 18 April 2016.T’s representative had asserted as much in his written representations to the Tribunal, but there was no formal evidence to support the assertion available at the paper hearing. T appealed to the Upper Tribunal.
Whether the Tribunal had applied the wrong test by focusing on the day when the application was received, rather than the date on which it was posted.
Whether the Tribunal had erred procedurally by dismissing T’s representative’s assertion that he had posted the application without giving him the opportunity to file evidence in support and for that evidence to be tested on cross examination.
Decision on appeal
The Upper Tribunal allowed the appeal.
The word “made” in section 48(2) of the 1993 Act referred to a unilateral act by the applicant. Further, rule 21(1) of the First Tier Tribunal Procedure Rules provided two methods for starting proceedings: “sending” or “delivering” a notice of application to the Tribunal. Either of those two acts was sufficient to start the proceedings. Therefore, an application will be considered “made” on the day of “the posting of a correctly addressed (and sufficiently stamped) notice of application to the FTT”. This is so, even if the application notice is delayed in the post or does not arrive.
The Upper Tribunal held that the FTT were not bound to accept the representative’s assertion that he had posted the letter on time, but, if it was not so inclined, the proper course was to require the representative to provide a witness statement and attend for cross examination. It was not open to the FTT to simply reject his assertion out of hand. The factual issue of the date of the posting of the application notice was remitted to the Tribunal. The Upper Tribunal recognised that, whereas a certificate of postage was the best method of proving that a document has been sent, it was not the only method.
Tribunal taking point on its own initiative
Fairness to the parties
Admiralty Park Management Company Limited v Olufemi Ojo
 UKUT 421 (LC)
The lessee made an application for the tribunal to determine his liability to pay service charges. The First-tier Tribunal (FTT) identified, on its own initiative, that the service charges had not been calculated in accordance with the lease, but refused the managing agent an adjournment to formulate a full response to the point, eventually holding that the charges were not recoverable. On appeal, the Upper Tribunal found that the FTT should have allowed the managing agent a proper opportunity to respond to it, even if this necessitated an adjournment of the hearing.
The service charge mechanism under the lease provided for the tenant to pay a share of the costs of services to the building in which the flat was housed, and to pay a different share in respect of maintenance of the outside common parts of the estate. Over a number of years (since at least 2009 according to the evidence) the managing agents had divided the costs of maintenance of all the buildings amongst all the long-leaseholders on the estate. The lessee raised no objection to this in his application or any of his evidence before coming to trial. The Tribunal, however, noted the discrepancy and made a finding against the managing agent on that basis. In the Upper Tribunal, the managing agent adduced evidence that this was a long-established practice to which the lessee had acquiesced, and therefore argued an estoppel by convention had arisen.
Whether the Tribunal should have raised the point on its own volition;
Having raised the issue, whether the Tribunal have adjourned to allow the managing agent to deal with the matter in full;
Whether an estoppel by convention had arisen.
The Tribunal found for the managing agents and held that an adjournment should have been allowed and that an estoppel had arisen.
The Tribunal was perfectly entitled to raise issues of its own initiative, (
Regent Management v Jones
 UKUT 369 (LC) and
Birmingham City Council v Keddie
 UKUT 323 (LC)). The Tribunal would often, par-ticularly when one or more of the parties was unrepresented, be in a better position than the parties to identify all of the issues in a case, in order to facilitate doing justice between them. In this case, the managing agent’s departure from the scheme of accounting required by the lease was so fundamental that it was “both proper and inevitable” that the Tribunal should raise the issue at the hearing.
However, where a Tribunal raises a new point that has not previously been referred to by either party, before reaching its decision, it must as a matter of natural justice give both par-ties an opportunity of making submissions and, if appropriate, adducing further evidence in respect of the new issue. The managing agents had not been given sufficient opportunity in this case.
On the facts, the Upper Tribunal was satisfied that an estoppel had arisen. The method of apportionment (which had been used for many years) had been obvious to the leaseholders, and in particular, there had been a similar dispute in relation to service charges before the LVT in 2011 and the lessee had not raised the point then.
This case provides useful guidance on the power of the Tribunal to raise issues on its own initiative. It irons out the apparent contradictions between the decisions in
Regent Management v Jones
Birmingham City Council v Keddie
by holding that, although it is an important part of the Tribunal’s role to assist the parties in formulating the issues (especially when they are in person), such power should not be exercised so as deny the parties an op-portunity to put their case in full on the new point, even if this results in an adjournment.
Willow Court Management Co v Alexander; Sinclair v 231 Sussex Gardens Right to Manage Ltd; Stone v 54 Hogarth Rd, London SW5 Management Ltd
 UKUT 290 (LC)
The Upper Tribunal has given guidance on the procedure and a three-stage analysis to apply when the First-tier Tribunal considers making a costs order on account of a party's alleged unreasonable behaviour in bringing, defending or conducting proceedings.
The court heard three conjoined appeals against costs orders made under rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the Rules”) on account of a party's unreasonable behaviour in bringing, defending or conducting proceedings. All three of the appeals arose out of disputes over service charges between leaseholders and management companies. The First-tier Tribunal had found that:
The first appellant management company had behaved unreasonably in bringing proceedings against the leaseholder without having complied with a contractual procedure;
The second appellant's conduct in failing to pay her service charge, in defending herself on what it considered to be spurious grounds and in generally behaving unreasonably, also justified an award under rule 13; and
The third appellant, who had been unrepresented, had acted unreasonably by not withdrawing proceedings earlier.
The cases were appealed to the Upper Tribunal.
The Upper Tribunal allowed the appeals. When considering where behaviour is “unreasonable” the Upper Tribunal held as follows:
An assessment of whether behaviour was unreasonable required a value judgment on which views might differ, but the standard of behaviour expected of parties in tribunal proceedings ought not to be set at an unrealistic level.
There was no reason to depart from the guidance on the meaning of "unreasonable" in Ridehalgh v Horsefield  Ch 205.
Unreasonable conduct included conduct that was vexatious and designed to harass the other side rather than advance the resolution of the case. It was not enough that the conduct led to an unsuccessful outcome. The test could be expressed in different ways by asking whether a reasonable person in the position of the party would have conducted themselves in the manner complained of, or whether there was a reasonable explanation for that conduct.
Tribunals ought not to be over-zealous in detecting unreasonable conduct after the event and should not lose sight of their own powers and responsibilities in the preparatory stages of proceedings.
The first stage of the analysis was an objective decision about whether a person had acted unreasonably. If so, at the second stage, a discretionary power was engaged and the tribunal had to consider whether it ought to make a costs order. If so, the third stage was the terms of the order.
Further, there was no general rule in the Tribunal that the unsuccessful party would be ordered to pay the successful party's costs. The fact that a party was unrepresented was relevant at the first stage. The behaviour of a unrepresented party with no legal knowledge should be judged by the standards of a reasonable person who did not have legal advice.
Rule 13(1)(a) and (b) should be reserved for the clearest cases and it was for the party claiming costs to satisfy the burden of demonstrating that the other party's conduct had been unreasonable.
In relation to each of the appeals, the Upper Tribunal held that:
(1) In the first appellant's case, the tribunal had accorded too much weight to the fact that the first appellant had lost at the substantive hearing, and the Tribunal had applied a standard of reasonableness that fell well below the applicable threshold.
(2) In the second appellant's case, the Tribunal's decision was procedurally unfair as she had been given no proper opportunity to respond to the case against her, and no proper opportunity to defend the reasonableness of her conduct. Further, the grounds relied on were not capable of amounting to unreasonable conduct. The mere fact that an unjustified dispute over liability for service charge had given rise to the proceedings could not itself be grounds for a finding of unreasonable conduct; only behaviour relating to the conduct of the proceedings themselves could be relied on at the first stage of the rule 13(1)(b) analysis.
(3) In the third appellant's case, it had been legally wrong to treat his withdrawal of the claim as unreasonable conduct. In Tribunal proceedings, there was no imputation that a discontinued claim was doomed to fail or should never have been brought.
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