The First-tier Tribunal has used section 35 of the Landlord and Tenant Act 1987 to vary leases in order to facilitate fire safety works to balconies.
In Britannia Village (Nine) Residents Management Company Ltd v Various Leaseholders LON/ooBB/2021/0008, the First-tier Tribunal (Property Chamber) considered whether the material leases failed to make satisfactory provision for balcony repairs such that the leases should be amended.
The development, known as Western Beach Apartments, 36 Hanover Avenue, London E16, and 1 and 2 Fitzwilliam Mews, London E16, comprised a block of 119 flats and two mews houses. Fire safety works were required to the balconies of the flats (including the replacement of timber decking). The head lessee of the development was a residents’ management company, and under the various leases it was obliged to maintain the common parts of the development. Common parts did not include any part demised under a lease. Expenditure on maintaining the common parts was recoverable as a service charge.
Under the various leases, where flats had the benefit of a balcony then the balcony formed part of that flat (with the exception of the load-bearing elements). Accordingly the RMC had no right or obligation to maintain the balconies and no right to exercise a right of entry to repair or maintain the balconies. The RMC applied to the tribunal to request that the leases be varied to make it clear that the RMC should be responsible for works to the balconies, should have access and should be able to recover the costs from the leaseholders.
Section 35 of the 1987 Act gives a tribunal the power to vary a lease if the lease fails to make “satisfactory provision” as regards a number of specified matters, including the repair or maintenance of the flat in question or the building containing the flat. The RMC argued that the leases of the development were not satisfactory as the arrangements for the repair and maintenance of the balconies were obscure and impractical. The variation sought would allow the necessary fire safety works to be carried out far more easily (as it would facilitate access) and would allow future maintenance to be carried out and costs recovered.
The tribunal agreed to the variations sought. The wording of the leases was unsatisfactory, in particular by failing to clearly identify those parts which were the responsibility of the lessee (having regard to the way the balconies and the building were constructed).The failure of one balcony would impact on the other flats, the structure and the common parts. The arrangement of dividing responsibility between the RMC and individual leaseholders was impractical and unsatisfactory, whereas the variation to make it clear that balconies were within the demise of a flat but their maintenance was the responsibility of the RMC would lead to consistency in management, maintenance and safety.
To make satisfactory provision it was additionally necessary to amend the leases to allow recovery of the costs of balcony repairs and also allow access for works to the balconies. Of course, while useful for the fire safety works, the variations granted will (unless varied again) endure throughout the terms of the leases.
Elizabeth Haggerty is a barrister
