December 2017

By Kavita Bharti, Legal Adviser, Leasehold Advisory Service

This particular question was considered in the recent case of JLK Limited v Emmanuel Chiedu Ezekwe (and others) [2017] UKUT 277 (LC) where a landlord successfully appealed against the decision of the First-tier Tribunal (FtT) that it had power to hear applications brought by 56 leaseholders (student accommodation) for a determination of the amount of service charges they were liable to pay.

The background

This case was regarding a large, 4-floor building called Alexander Terrace which was converted into 93 units of residential accommodation in 2012 intended for occupation by students. Each of the units is let on a long lease which demises the unit together with the right to use communal kitchens and lounges, showers and toilets situated on the same floor.

The building had been occupied by students between 2011 and 2014. In 2014 a prohibition order had been served by the local housing authority pursuant to s.20 of the Housing Act 2004because the communal boiler in the building had stopped working and there was no longer any supply of hot or cold water. From then on the use of the building was prohibited and it became an offence for any person to use or permit the building to be used in contravention of the order.

56 leaseholders then brought applications under s.27A of the LTA85 to determine the service charges payable to their landlord for the years 2014-2016.

Is student accommodation classed as a “dwelling” for the purposes of LTA 1985?

The following issues were considered by the FtT.

The FtT

The FtT ruled that the units were ‘dwellings’ and therefore they had jurisdiction to determine the amount of service charges payable by the leaseholders of those units. The FtT granted permission to appeal given the wider significance of their decision.

The Upper Tribunal

The FtT’s decision was upheld with regards the first and second ground of appeal as it was held that a unit of accommodation does not need to be someone’s ‘home’ to be a dwelling. If part of a building is physically capable of being occupied as a separate dwelling there does not appear to be anything in the language, context or purpose of the relevant passages in the 1985 Act to require additionally that it must be occupied as someone’s home.

However, it was held, under the third ground for appeal, that the accommodation was not occupied or intended to be occupied as a separate dwelling and so they were not dwellings within the meaning of section 38 of the Landlord and Tenant Act 1985 which states that “dwelling” means a building or part of a building occupied or intended to be occupied as a separate dwelling together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it. The accommodation was not occupied nor intended to be occupied as separate dwellings. The bed-sit rooms that comprised the units were only a part of a tenant’s dwelling, which in fact comprised of a further kitchen and lounge. Therefore the FtT did not have jurisdiction to consider the applications under s.27A of the Act.

Take-aways

Relevant links

LEASE is governed by a board, appointed as individuals by the Secretary of State for the Ministry of Housing, Communities & Local Government.