Landlord and tenant – Service charges – Construction of lease – Lessees’ obligations – Appellant freeholders appealing against decision of First-tier Tribunal determining lessees’ obligations to repair and decorate flats – Whether FTT erring in determination of parties’ liabilities under lease – Appeal allowed
The appellants were the respective freeholders of two blocks of flats, acquired through collective enfranchisement, on Boundary Road, London NW8. They applied for a determination of the liability of the lessees of the flats in both blocks to pay a service charge in respect of the repair, maintenance and decoration of the internal front doors of the flats and the meter cupboards adjacent to those doors. The First-tier Tribunal (FTT) had to construe the leases, which were in identical terms, to decide whether the front doors, and the meter cupboards, were within the demise to the tenant in each case, and then to decide the parties’ obligations in the light of the terms of the leases.
The FTT took the view that the same issues were raised in each case. It decided, first, that the internal front doors to each flat were part of the demise to the tenant and that the tenant was responsible for their repair and decoration. The FTT made no distinction between the inner and outer surfaces of those doors. The entire door in each case (and its lock) belonged to the tenant. Second, the FTT found that the meter cupboards were not part of the demise, and that they were therefore the appellant landlords’ responsibility.
The appellants challenged the FTT’s decision in relation only to the interior of the cupboards, which they said belonged to the lessees; they accepted the FTT’s decision so far as the doors of the cupboards were concerned. As to the ownership of the interior of the meter cupboards, the appellants argued that the FTT should not have ignored the lease plan which clearly showed the cupboards to be part of the demise. They accepted that it was not definitive, since the demised premises were not said to be “more particularly delineated and shown” on the plan (nor was the plan said to be for the purposes of identification only). The FTT’s concern about the absence of express rights and obligations was said to be misplaced; there was no more need for express rights over the meter cupboard than for express rights over the kitchen, because both were part of the demise. The appeal was determined on written representations.
Held: The appeal was allowed.
(1) The FTT’s task was to construe the leases, by reference to what the leases (including their plans) said. Only if the leases were ambiguous was it permissible to refer to other evidence of the intentions of the parties at the time the lease was granted. The approach adopted by the courts in the context of boundary disputes was equally relevant: in construing the lease the court or tribunal had to ask itself what the purchaser with the plan in their hand, on the day of the grant of the lease, would think they were buying. The answer was relatively simple. The lease was not ambiguous. It did not mention the cupboards, any more than it mentioned the kitchen or the bedroom, but the cupboards were unambiguously within the plan. It was difficult to see why there was any need to go further. The absence of specific obligations relating to the cupboard did not cast doubt on that, and that the landlord’s obligation to repair wires inside the cupboard did not indicate that it had to belong to the landlord. There was no need for the cupboards to comprise “habitable space”; and there would be no special difficulty for the landlord in enforcing obligations of the tenant relating to the interior of the cupboard: Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 considered.
(2) The appellants’ argument that the FTT’s decision should stand so far only as the cupboard doors were concerned because the doors of the meter cupboards were part of the walls separating the flat from the rest of the building, and so had to be excepted from the demise, was rejected. A door was not a wall. Just as it made no sense for the front doors of the flat to be excluded from the demise, so it was not plausible to suppose that the tenant could be lessee of the cupboards and not of the cupboard doors. Accordingly, the FTT’s reasons for rejecting the unambiguous evidence of the plan were irrational and its decision had to be set aside. There was no purpose in remitting the two applications to the FTT. The tribunal would re-make both decisions: the cupboards (including their doors) were within the demised premises for each lease in the two buildings. That was consistent with the position adopted by the appellants, and accepted by many leaseholders, so far as the removal of the asbestos was concerned. There might be concerns about consistency of decoration within the buildings, but with some goodwill and co-operation it would be possible to devise practical solutions to that. The tribunal’s decision rested on the drafting of the leases and their plans, which could not be shown to have been mistaken or inaccurate.
Eileen O’Grady, barrister
