If a lessee has the right to use part of a building under the terms of his lease and is obliged to pay towards the maintenance of the same, then even if he does not use it, he is still liable to contribute towards its maintenance
In Reekie v Oakwood Court Residents Association [2023] UKUT 45 (LC), the Upper Tribunal (Lands Chamber) was asked to determine whether a long lessee was obliged by the terms of his lease to contribute to the cost of refurbishing a lift that he claimed not to use.
The appellant was the long leaseholder of three flats (1, 2 and 5) situated in a large converted Victorian house in Eastbourne. Prior to his acquisition, flats 1, 2 and 5 were converted to form a single large dwelling occupying most of the ground floor and part of the first floor of the building. A new staircase was installed, which enabled the lessee to use the three flats as a single unit. After the installation of the new staircase, flat 5 became accessible without the use of the communal side entrance or lift serving the building.
Pursuant to the terms of the lease for flat 5, the respondent landlord was obliged to keep the lift in repair. The lessee was granted an express right to use the lift. By virtue of clause 1, the landlord could demand that the lessee pay a contribution towards the cost of maintaining parts of the building, including the lift, which the lessee and other certain tenants had the use of. The apportionment of the same was at the discretion of the landlord.
In November 2019, the landlord carried out refurbishment work to the lift. It demanded that the lessee contribute the sum of £3,870. The lessee refused, arguing that he did not use the lift and was therefore not liable to contribute to its maintenance. The FTT disagreed.
Construing the terms of the lease, the FTT found that the lessee had been granted the “use of” the lift and was therefore required to contribute to its maintenance under clause 1. The UT agreed. The lessee had an express right to use the lift under the terms of his lease. The fact that he chose not to do so did not absolve him from his contractual liability under clause 1 to contribute towards its maintenance.
Elizabeth Dwomoh is a barrister at Lamb Chambers
