JLK Limited v Emmanuel Chiedu Ezekwe (and others) [2017] UKUT 277 (LC)

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Tanfield's Adrian Carr acted for the respondents in this case.

Summary

The Upper Tribunal upheld the First Tier Tribunal’s decision that units of accommodation designed for students were ‘dwellings’, but overturned the decision that such units were ‘separate dwellings’. As such, the FTT did not have jurisdiction to determine the amount of service charges payable by the units’ leaseholders under sections 18 to 30 of the Landlord and Tenant Act 1985.

Facts

The case concerned a large, 4-floor building, formerly the headquarters of the Liverpool fire brigade and recently converted into 93 units of residential accommodation intended for occupation by students. Each unit consisted of a single bedroom with a wardrobe and a desk, with all but six rooms having a further en suite shower, washbasin and WC. A communal kitchen and living area was shared between five units.

The building had been occupied by students between 2011 and 2014, when a prohibition order had been served by the local housing authority pursuant to s.20 of the Housing Act 2004. 56 leaseholders sought to bring applications under s.27A of the LTA85 to determine the service charges payable to their landlord for the years 2014-2016.

Issues

  1. Whether, for a unit of accommodation to be a "dwelling" for the purpose of the LTA85, it is necessary that it should be used as, or be intended to be used as, someone's home.
  2. If so, whether the units at Alexander Terrace satisfy that requirement.
  3. Whether, in any event, each of the units at Alexander Terrace is occupied or intended to be occupied as a "separate" dwelling, or whether the availability of communal facilities to which each tenant has access under the terms of their lease means that the necessary element of separateness is missing.

First instance

The FTT ruled that the units were ‘dwellings’ such that it 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.

Decision on appeal

The Upper Tribunal upheld the FTT’s decision on the first and second grounds of appeal. A unit of accommodation does not need to be someone’s ‘home’ to be a dwelling: s.38 of the LTA85 contains no such requirement and could be distinguished from s.1 Rent Act 1977 and Housing Act 1988 so far as relevant.

However, it was nevertheless determined under the third issue that the units were not dwellings, because they were not occupied or intended to be occupied as separate dwellings. The bed-sitting rooms that comprised the units were only a part of a tenant’s dwelling, which in fact comprised of a further kitchen and lounge. As such the FTT did not have jurisdiction under s.27A of the Act.

Justin Bates acted for the appellant (J) and Adrian Carr for the respondents (E).