Most leases include a list of the services that will be provided for, and at the cost of, tenants – and, if the charging provisions do not specifically include an item, the landlord is likely to face an uphill battle to charge for it.
In Wilcock v The Guinness Partnership Ltd [2019] UKUT 146 (LC), the landlord sought to recover costs that it almost certainly never expected to have to incur – the cost of removing rubbish dumped illegally in the car park at the rear of a building that contained eight flats.
The tenant’s weekly tenancy agreement, which was granted in 1997, obliged the landlord to repair the structure and exterior of the premises and also to “keep the common entrances, halls, stairways, lifts, passageways, rubbish chutes, and any other common parts, including the electric lighting, in reasonable repair and fit for use by the tenant and other occupiers and visitors to the premises”.
In addition, the landlord was obliged to provide “the following services …. for which the tenant shall pay a service charge”. The list of services for which the landlord was entitled to charge was exceedingly brief; it covered “garden maintenance, lighting (stairways), and landlords lighting external” – and the service charge was initially set at £2 per week.
The landlord did not try to suggest that the bulk refuse removal, forced upon it by whoever had illegally dumped the waste, was part and parcel of “garden maintenance”. And, because the service charge list did not include the maintenance of the car park, or other parts of the common parts, the Upper Tribunal ruled that the landlord was not entitled to add the cost of removing the rubbish to the service charge.
Did the provisions of the tenancy agreement enable the landlord to include additional items in the service charge? The agreement contained provisions stating that the service charge would be variable, was to be reviewed annually, and could be increased or decreased by reference to the costs incurred during each service charge period.
However, the tribunal ruled that the provision contemplated a variation in the amount payable to reflect variations in the costs of providing the specified services – and could not be read as entitling the landlord to add to the scheduled services for which a service charge could be made, by including items that were not previously mentioned.
The tenancy agreement contained a covenant by the landlord to take reasonable care to keep the common parts in reasonable repair and fit for use by the occupiers. And, in order to comply with this covenant, the landlord was obliged to remove rubbish fly-tipped in the car park. But the lease did not make any provision for the tenant to contribute through the service charge to any costs that the landlord incurred in so doing. Therefore, the landlord was not entitled to charge for the service provided.
Allyson Colby, property law consultant
