In Tann v Bhundia and others [2022] UKUT 268 (LC) the Upper Tribunal was asked to determine the extent of the freeholder's liability to repair a horizontal concrete slab that formed part of an extended roof.
The first respondent was the freehold owner of the house which comprised two maisonette flats. The ground floor flat (187) was held on a long lease by the appellant. The first floor flat (187A), was held on a long lease by the second respondent.
The ground floor flat had been horizontally extended so that it protruded out from the first floor flat above, with the roof of the extension becoming a balcony to the first floor flat.
The extension, consisting of the concrete slab in question, a ceiling below and an asphalt surface above, required repair.
Liable for repairs
The freeholder applied to the First-tier Tribunal (under section 27A(3) of the Landlord and Tenant Act 1985) for a determination as to whether they were liable to repair the concrete slab and, if so, whether they could recover the costs of doing so from the lessees, by way of service charge.
The freeholder argued that they were not required to repair parts of the building that were demised to the leaseholders and that the concrete slab was included in the demise to the leaseholders. As such the leaseholders were responsible for the repairs.
The appellant argued that, under the terms of her lease, the freeholder was required to repair the flat’s common and structural parts including its ‘roofs’, which included the roof of the main building, but also the roof of the extension. The appellant agreed to pay a contribution towards such works.
Legal obligations
At first instance, the First-tier Tribunal found the freeholder’s repair obligations extended only to the parts of the building which were ‘used or capable of being used by the lessor and the lessee’. Although the freeholder's repairing obligation extended to party walls and party structures, the freeholders did not use, nor were capable of using, the concrete slab between the flats and were not, therefore, liable for its repair under either of the leases. The appellant appealed.
The Upper Tribunal considered whether the works were to be carried out by the freeholders and, if so, whether service charges were payable by the leaseholders in respect of the costs of such works.
Crucially, the Upper Tribunal found that both leases were silent in relation to the concrete slab and the remainder of the horizontal structure between the flats. In the absence of an express reservation, when there has been a demise of part, the definition in the lease of the premises must include the external walls enclosing the part divided horizontally or vertically. The leases in question contained no such express reservation and both leases must therefore include the external walls. In addition, the Upper Tribunal found that the horizontal structure between the flats, including the concrete slab, was not reserved to the freeholder.
The Upper Tribunal determined that the concrete slab and the horizontal structure between the two flats were demised with the ground floor and the Appellant was liable for its repair.
Finally, the Upper Tribunal determined that the leaseholder of the first floor flat (second respondent) was required to contribute to contribute to the cost of repairs to the concrete slab equally. The leaseholder of the ground floor flat (appellant) could require the freeholder to enforce that covenant, with any payment received passed onto the appellant.
Precise drafting of lease provisions
This decision serves as a useful reminder to be very precise in the drafting of lease provisions that describe the demise of a property. The demise must be accurately defined in both the wording of the lease and any plans, in order for service charge provisions to be properly applied. Provisions should describe exactly what extent of property is included within the tenant’s demise and/or exactly what extent of property falls within the tenant’s covenant to repair. In the event of an uncertainty, disputes may arise which may have to be resolved by Court or Tribunal proceedings.
The shared use point was telling; under the lease terms, the freeholder was only responsible for the repair of parts which they could use in common with the Leaseholders. Without access to or use of the concrete slab, the freeholder could not be found to be responsible for its repair.
The decision also continues to reinforce the importance of considering the original parties’ intentions, at the time the parties entered into the contract. The finding in this case was that to impose any different interpretation of the provisions, would have left an unduly heavy burden on the leaseholder of 187A (the first floor flat), which could not have been the intention of the parties at the time.
