Landlord and tenant – Service charges – Construction of lease – Appellant tenant appealing against decision of First-tier Tribunal that service charges reasonable and payable – Whether windows part of structure of building – Whether charges reasonable – Appeal allowed in part
The respondent was the freehold owner of Bellamy’s Court, Abbotshade Road, London, SE16, which was one block in a complex of 141 flats and houses known as Princes Riverside. The lease was for a term of 999 years from 13 May 1996. The respondent was the lessor and the appellant became the lessee by assignment in 2009 and was obliged to pay the rent and the service charge.
On 8 March 2018, the respondent commenced proceedings in the county court against the appellant, seeking an order for the payment of £7,034.26 in respect of unpaid service charges, together with a declaration that those charges were due and payable. The court made an order transferring the matter to the First-tier Tribunal (FTT) because the action was to recover arrears of service charge which were disputed by the appellant.
The appellant contended that the respondent as landlord was not obliged to carry out any work on the patio doors because they were part of the demise and the landlord was not obliged under the lease to repair the windows (and therefore could not charge either item to the service charge or the reserve fund); alternatively, the respondent should have repaired the doors and windows and it was unreasonable to have replaced them. The respondent argued that it was entitled to repair the windows as part of the structure of the building and that replacement, in the circumstances, was a reasonable course of action. While the doors of the flat belonged to the lessee, the patio doors were part of a unit with the windows and therefore it was not possible to replace the windows without also replacing the patio doors.
The FTT decided that the charges were reasonable and payable as the lease required the landlord to provide services and the tenant to contribute towards their cost by way of a variable service charge. Patio doors were not within the flat and an interpretation which enabled the landlord to be responsible for the glass but not the frame of the patio doors was not intended by the draftsman and would be wholly illogical and absurd. Accordingly, the respondent was responsible for the patio doors and the windows.
The appellant appealed. The appeal was determined under the written representations procedure.
Held: The appeal was allowed in part.
(1) On the true construction of the lease, the FTT’s decision about the patio doors was made in error. The patio doors, like the front door of the flat, were demised to the appellant and were not within the landlord’s repairing obligation and not, therefore, within its ability to charge a service charge or to impose a contribution to the reserve fund.
(2) Whether windows were part of the structure of a building was a matter of construction in each case. In construing a lease, its clear terms were not to be manipulated in order to turn a bad bargain into a good one. If the current lease did not include an obligation to repair the windows despite its very long term, then that was that. However, in Irvine v Moran [1991] 1 EGLR 261, the court held that “structure” was not limited to load-bearing elements, but consisted of those elements of the overall dwelling house which gave it its essential appearance, stability and shape. In that case the windows were part of the structure. In construing a lease one was trying to ascertain the intentions of the parties to it. It was highly unlikely that the parties intended that in the course of a 999-year lease no-one would be obliged to repair the windows, which was a relevant point when construing the words of the lease. Despite the FTT’s cursory treatment of the point, there could be no doubt that the landlord was required to repair the windows. In the absence of any express covenant to keep the windows in repair, they had to be regarded as part of the structure of the block and fell within the obligation to repair the structure in para 1(b) of the fifth schedule to the lease: Arnold v Britton followed. Irvin, Holiday House Fellowship v Viscount Hereford [1959] 1 All ER 433, Holding and Management Ltd v Property Holding and Investment Trust plc [1990] 1 EGLR 65, Ibrahim v Dovecote Reversions Ltd [2001] 2 EGLR 46 and Pattrick v Marley Estates Management Ltd [2007] EWCA Civ 1176; [2007] PLSCS 229 considered.
(3) The question whether replacement amounted to repair depended upon the facts of the case. It was well-established that it might be proper to replace windows and other components because there came a point when repair was no longer practicable. At the extreme end of the scale, when window frames had rotted and were falling off their hinges then repair would mean replacement; at the other end of the scale where a coat of paint was all that was needed, replacement was not within the obligation to repair. In the middle of the scale was a disputed area, and a reason for replacement rather than repair might be the fact that the lifespan of the windows was such that there came a time when it was best to replace wood, whether with wood or with another material such as PVC. That was the case here where there was evidence that only replacement was going to solve a condensation problem.
(4) The FTT had not mis-stated the conclusions of the respondent’s expert evidence in saying that it concluded that windows had “failed”. Although the FTT’s decision was very much inclined to summary rather than to detailed analysis, it had given proper consideration to the evidence before it and was mindful of both parties’ evidence on the condition of the windows. In essence, the appellant disagreed with the FTT’s findings of fact about reasonableness but those findings were justified on the evidence. Furthermore, based on a proper consideration of the evidence, the decision by the respondent to carry out the replacement of the windows rather than a piecemeal repair was within the realms of reasonable responses by the respondent. Accordingly, the appeal succeeded only as far as concerned the work done on the patio doors. As to the rest of the work, the service charge, including the charge to the reserve fund, was reasonable and payable.
Eileen O’Grady, barrister
Click here to read a transcript of Tay v Holding & Management (Solitaire) Ltd
