That old can of worms

The recent decision of the Upper Tribunal (Lands Chamber) in OM Property Management Ltd v Burr [2012] UKUT 2 (LC) appears to re-open the vexed question of when costs are “incurred” for the purposes of the time limit on recovery of expenditure through service charges set out in s 20B of the Landlord and Tenant Act 1985, which appeared to have been laid to rest in a decision handed down last year.

In Jean-Paul & Anr v London Borough of Southwark [2011] UKUT 178 (LC), the president of the Upper Tribunal (Lands Chamber) had drawn a helpful distinction between the incurring of a liability (an obligation to make a payment) and incurring costs, the latter being the formulation in the statute. He concluded that costs were only “incurred” for the purposes of s 20B when payment was made.

In Burr, His Honour Judge Mole QC also referred to the