Paul Letman analyses a recent landmark decision on residential service charges
The High Court’s decision in Phillips v Francis [2012] EWHC 3650 (Ch) changes the established approach to consultation under the Landlord and Tenant Act 1985 (LTA 1985) in respect of qualifying works, defined as works on a building or any other premises to the costs of which a tenant may be required to contribute by payment of a service charge (see s 20(2)).
The change
Before this decision, the received approach to the question of whether to consult or not under LTA 1985—before amendment by the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) —followed the Court of Appeal decision in Martin v Maryland [1999] 2 EGLR 53. In that case, Robert Walker LJ laid down what he described as “a common sense” approach to deciding how, if at all, to divide up works for the purpose of deciding whether a landlord should have complied with the statutory consultation requirements in respect of those works.
Essentially, the old approach formed a three-stage test (as applied by the judge
