201706.01

Property Improvement Notices – Court of Appeal Test Case

FlatsIn an important decision for property professionals, the Court of Appeal has given guidance on the extent of local authority powers under the Housing Act 2004 to require improvements to be made to properties that are considered hazardous.

The case concerned two vertically adjoining flats, the boundary between which lay at the mid-point of the joists between the ceiling of the lower flat and the floor of the upper flat. The ceiling of the lower flat was in poor condition and the local council took the view that there was inadequate fire resistance between the properties.

The council served notice on the owners of both flats requiring either that the ceiling be replaced or that a certified fire resistant product be installed between the two flats. The latter option was seven times more expensive than the former. The tenant of the upper flat appealed against the improvement notice.

In upholding his challenge, the Upper Tribunal (UT) found that, as replacing the ceiling would only require works to be carried out in the lower flat, that option should have been excluded from the notice served upon the owner of the upper flat. The more expensive option would also be more disruptive and the UT found that it was irrational of the council to insist upon the carrying out of those works when a cheaper and easier alternative was available. The end result was that the owner of the lower flat was required to repair her ceiling at her own expense.

In dismissing the council’s challenge to that decision, the Court identified flaws in the UT’s reasoning but nevertheless found that the right outcome had been reached. The UT was not confined to either confirming or quashing the notice and, having indentified what it considered to be a better way forward, was entitled to vary it.

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