Landlord and tenant — 99-year leases of flats — Liability for replacement of windows and window frames — Whether external windows included in demise of flats — Whether cost of replacement included in service charge — Landlord and Tenant Act 1985, sections 19 and 20 — Landlords’ claim that replacement costs can be included in service charge upheld
in this case arose because it was discovered on a recent redecoration of the
exterior of the block of flats that many of the timber window frames were
defective and required to be replaced — It was obviously more satisfactory and
cheaper to replace all the timber windows at the same time than to leave it to
individual tenants to do it from time to time — A question, however, arose as
to the responsibility for replacement and whether the cost would be covered by
the service charge
reference in the demise of the flat to ‘glass windows therein’, the judge came
to the conclusion that the external windows were not included in the demise —
It appeared that there were internal glass windows in the flats and this,
together with other features of the lease, satisfied him that the external
windows were not included — The lessor’s repairing covenant covered, inter
alia, ‘windows and structures of the estate other than those for which the
lessee is responsible’ — If the external windows were not included in the
demise, the lessee was clearly not so responsible — The service charge payable
by the tenants covered ‘costs and expenses incurred by the lessor’, including
the matters for which the lessor was responsible under the repairing covenants
requirements of section 19(1)(a) and section 20 of the Landlord and Tenant Act
1985 had been satisfied and a declaration to that effect would be made —
Provided that section 19(1)(b) (works carried out to a reasonable standard)
would also be satisfied in due course, the cost of replacing the windows would
be properly recoverable under the service charge — As regards the costs of the
present application, none of the defendant tenants had appeared or been
represented and, on the footing that the landlords did not propose to seek
costs against them, these costs would also be recoverable under the service
charge — Declarations accordingly
No cases are
referred to in this report.
By this
summons the landlords, Reston Ltd, sought declarations as to the liability
under 99-year leases of flats in a property known as Rodwell Court, Hersham
Road, Walton on Thames, Surrey, for the replacement of external windows,
including the window frames, in the flats. The defendants, none of whom
appeared or were represented, were individual tenants of the flats.
Miss Susan
Prevezer (instructed by Paton Walsh Laundy) appeared on behalf of the plaintiff
landlords.
Giving
judgment, JUDGE HAGUE QC said: In a properly drawn form of lease of a
flat in a block of flats, the description of the property demised, that is to
say the flat, coupled with other provisions of the lease, ought to make it
clear whether or not individual items are included in the demise and who has
the responsibility for repairing them. One such item which sometimes causes
difficulty comprises the windows, including the window frames, of individual
flats and, as I say, a properly drawn lease should make it clear whose
responsibility they are, one way or the other.
The lease
which I am considering in this case is a common form of lease of the flats in a
property known as Rodwell Court, Hersham Road, Walton on Thames, Surrey. They
were 99-year leases granted in 1965. It is necessary for me to read some of the
provisions of the lease.
The demise
reads as follows:
All that flat
(hereinafter called ‘the flat’) which expression shall, where the context so
admits, include all permitted additions or alterations to the flat and all
lessors fixtures and fittings, heating (including underfloor heating if any)
installations and glass windows therein and all gutters, soakways, water, gas
and other pipes, drains, conduits, electrical wires and cables serving the flat
exclusively, and including one half of each wall (except any loadbearing main
structural walls) separating the flat from any other internal part of the
building hereinafter described, and the internal faces of all walls of the flat
and also the ceilings and floors of the flat but excluding the joists and
girders if any to which the ceilings and walls are attached.
That jumbled
description does not make it clear at all whether the window frames and the
glass within them are or are not included in the demise. There is, of course,
the reference to ‘glass windows therein’, which on the face of it one might
have thought would include the exterior windows. On the other hand, I am told
(and there is evidence) that there are internal glass windows and it is
submitted by counsel for the landlords that the reference to ‘glass windows
therein’ is intended to relate to those internal windows and not to the
external windows.
It seems to me
that some support for that can be gathered from the rest of the clause and in
particular the references to the walls. I think it is clear that the demise
does not include the external walls of the flat, not even one half of them, but
only what the lease calls ‘the internal faces’ of such walls. If that is so, it
seems to me to be illogical to include in ‘the flat’ the window frames and the
external windows which would not normally be part of the internal faces.
Although the matter is by no means easy, it seems to me that the intention of
the draftsman was not to include the window frames or the external glass
windows within the demise.
Of course, the
demise itself does not stand alone and I must see whether there is any other
help to be gathered from other provisions of the lease. Clause 2(c) contains a
general tenant’s repairing covenant, but it simply refers to ‘the flat’ and I
do not think really helps one way or the other. In clause 4(d) there is the
landlord’s repairing covenant, subject to the payment of rent and the service
charge, which refers to the main structure and the main walls of the building
and, under (iv), ‘the boundary walls, fences, railings, gates and party walls,
windows and structures of the estate other than those for which the lessee is
responsible’. The exterior windows of each flat would be included, as it seems
to me, within that unless of course the lessee is responsible for them. That
brings us back to the question of whether they are or are not within the
demise. So that again seems to me to be rather neutral, though of course it is
the foundation of the landlords’ claim that the repair of the windows can be
included in the service charge.
The first
schedule to the lease includes what are referred to as restrictions imposed in
respect of the flat, but para 12 of that schedule is not a restriction at all
but is an obligation, and the obligation is ‘To clean all windows both outside
and inside the flat at least once in every six weeks’. That seems to me to be
consistent with the view that the windows are not included in the flat, because
if they were included that obligation would come within the general tenant’s
obligation in clause 2(c) and para 12 would not really be necessary.
The only other
part of the lease I think I need refer to is the fourth schedule, which is a
list of the costs, expenses, outgoings and matters in respect of which the
lessee is to contribute. These include under 1:
All costs and
expenses incurred by the lessor for the purpose of complying or in connection
with the fulfilment of its obligations under paragraphs (b), (d), (e), (f) and
(g) of clause 4 hereof.
So that
includes all the matters for which the landlords are liable under their
repairing and other covenants. They can also include under para 5 the cost of
keeping the exterior of the windows of the common parts of the estate clean.
That marries in, I think, with para 12 of the first schedule, because it simply
means that the window-cleaning costs can be recovered only in respect of the
common-parts windows.
I do not think
there is anything else in the lease which affects the view which I have
indicated earlier as to whether the demise includes the window frames and
exterior windows of each flat.
The matter has
arisen in this way. On a recent redecoration of the exterior it has been
discovered that many of the timber, as they now are, window frames in a number
of the flats are defective and need replacing. The landlords having, as it
seems to me, taken proper advice and gone through the right steps have come to
the conclusion that it is simply not practical, and indeed would be more
expensive, to replace the individual timbers. Obviously, for aesthetic reasons,
one must either repair the defective ones with similar material or replace the
lot; one cannot replace some of them with different material, leaving other
window frames of the original material. The landlords have taken the view,
which is obviously a sensible view, that the time has now come when it would be
appropriate to replace all the timber windows. If they do that under one
substantial contract of course it would be considerably cheaper than it would
be if it were left to individual tenants to do it from time to time.
So the common
sense of the matter does seem to me to support the landlords’ proposals. The
course they took was first to circularise the tenants and tell them of the
proposals. As in any situation of this kind there are always a few people who
object, and one of the points raised, I think, was that the service charge did
not cover this kind of matter. The landlords have therefore taken the
precaution of coming to the court for an appropriate declaration as to whether
the renewal of the windows comes within the service-charge provisions. I think
that was undoubtedly a sensible course for the landlords to take in view of the
unfortunate way in which the relevant provisions of the lease have been
drafted. Having regard to my decision, I will make an appropriate declaration,
the exact terms of which I will discuss with counsel in a moment.
There are,
however, further matters which arise, as a result of certain sections of the
Landlord and Tenant Act 1985 which regulate and restrict the recovery of service
charges from tenants. Before that Act was passed it was notorious that some
unscrupulous landlords had tried to make an undue profit out of service-charge
provisions and the relevant part of the 1985 Act was enacted to prevent that
abuse. Section 18 defines ‘service charge’ and ‘costs’ and it is quite clear
that that is what I am dealing with.
Then section
19 provides that the relevant costs shall be taken into account in determining
the amount of service charge payable for a period (a) only to the extent that
they are reasonably incurred, and (b), where they are incurred on the provision
of services or the carrying out of works, only if the services or works are of
a reasonable standard and the amount payable should be limited accordingly. So
first of all it has got to be reasonable to incur the expenses and, second, the
work has got to be up to standard. Of course, before the work is done we do not
know whether or not it is going to be up to standard, but what the landlords
ask for is a declaration dealing with the matter under para (a) so that there
can be no doubt in the future that the works are reasonably incurred, and I
propose to grant a declaration to that effect.
Under section
20 there are requirements laid down as to the obtaining of estimates for
proposed work by a landlord and notification of the tenants. I am satisfied on
the evidence that these landlords have carried out those requirements and I
will again make an appropriate declaration, the terms of which I will discuss
with counsel in a moment.
Finally, there
comes the question of the costs of this application. A substantial number of
tenants have been joined as defendants, but none of them has appeared and
argued before me. Under the fourth schedule to the lease, there can be included
in the service charge, under para 3, ‘The cost of management of the estate’,
and under para 8 ‘All outgoings, costs and expenses whatsoever which the lessor
may reasonably incur in the discharge of its obligations under clause 4 of the
lease and not otherwise hereinbefore specifically mentioned’; that is, not the
actual works of repair, but other matters which come within clause 4. In view
of the obvious difficulties concerning the interpretation of the lease and the
difficulties which would flow if the landlords went ahead without getting rid
of the legal obstacles beforehand, it seems to me that the landlords have
reasonably incurred the costs of this application. In my judgment, the costs
fall fairly and squarely within para 8 of the fourth schedule and also, I
think, they fall within para 3. I will make a further declaration
appropriately, of course on the footing that the landlords do not ask for costs
against the individual defendants, which I presume they are not going to do.
