Landlord and tenant – Service charges – Assured tenancy – Appellant owning flats occupied under assured tenancies – Respondent tenant applying for determination of liability to service charges – First-tier Tribunal deciding costs of repairing and maintaining lift not included in service charge – Appellant appealing – Whether section 11 of Landlord and Tenant Act 1985 preventing appellant from recovering cost of repairing and maintaining lift – Appeal allowed
Tony Law House, Penge, London was a four storey, purpose-built independent living retirement development of 51 flats for those aged 55 and over. It was owned by the appellant, a non-profit registered provider of social housing. All the flats were occupied under assured tenancies under the Housing Act 1988. The respondent had occupied his flat on the fourth floor of the building since February 2010.
The development was a sheltered housing scheme, and many of the tenants were elderly or infirm and a properly functioning lift serving all floors of the building was an essential facility without which many tenants would be unable to continue living there.
The appellant’s responsibilities, as landlord, included repairing and maintaining any communal (shared) areas. That included lift, although it was not specifically mentioned.
The respondent applied to the First-tier Tribunal (FTT) under section 27A of Landlord and Tenant Act 1985, for a determination of his liability to pay service charges. The respondent argued that, as an assured tenant, he should not be required to contribute towards the cost of repairs to the structure of the building, including the lift.
The FTT determined that costs incurred by the appellant in repairing and maintaining the lift could not be included in the service charge as it was one of the installations in the building covered by section 11(1)(b) of the 1985 Act which prevented the landlord from recovering the costs of certain repairs from its tenants. The appellant appealed.
Held: The appeal was allowed.
(1) Section 11 of the 1985 Act required landlords to keep in repair the structure and exterior of dwellings let on short term tenancies and the installations providing services for them. It implied statutory repairing covenants into all tenancies to which the section applied, which overrode any provision of a tenancy agreement which would have the effect of placing the same obligations on the tenant.
In their original form, the implied covenants were limited to the structure and exterior of the dwelling-house, and installations in the dwelling-house, but that narrow focus on the unit of accommodation itself was eventually found to be too narrow in the case of flats: see Campden Hill Towers v Gardner [1977] 1 EGLR 23. With effect from 15 January 1989, the scope of the statutory covenants was extended to cover other parts of a building containing a dwelling let on a tenancy to which section 11 applied: see section 11(1A), (1B).
(2) It was clear that the FTT went astray in its analysis of section 11. The leap from identifying something as a common facility and concluding that it was an installation to which section 11(1)(b) applied was insupportable. The FTT treated section 11(1B) as introducing a freestanding additional covenant, which obliged the appellant to repair common parts of the building, and via section 60, the common “facilities” including the lift. Its true purpose was to narrow rather than to widen the scope of section 11(1A).
The subject matter of the covenants remained, first, the structure and exterior of the dwelling-house and the building in so far as it belonged to the landlord; and secondly, the specific types of installation identified in section 11(1)(b) and (c) (whether inside the dwelling-house or in another part of the building) provided they directly or indirectly serve the dwelling-house. Subsection (1B) qualified the obligation to repair the structure and exterior of the building and the relevant installations and arose only if the disrepair affected the lessee’s enjoyment of the dwelling-house or the common parts.
(3) The appropriate place to begin the analysis was with section 11(1). The lift was clearly not part of the structure or exterior of the respondent’s flat and so did not fall within subsection (1)(a); nor was it an installation in the flat for the supply of water, gas, electricity or sanitation, or for space heating or heating water, and so does not fall within subsection (1)(b) or (c). It was neither in the flat, nor the sort of installation which was covered by the obligation.
Subsection (1A) was “subject to subsection (1B)” but its effect was to modify subsection (1) by extending the implied repairing covenant to parts of the building which were not also parts of the dwelling-house. Thus, by subsection (1A)(a) the obligation in subsection (1)(a) now additionally required the landlord to repair the structure and exterior of any part of the building in which it had an interest. By subsection (1A)(b), the service installations which the landlord was required by subsection (1)(b) and (c) to keep in repair now additionally included any installation of the sort already mentioned if, directly or indirectly, it served the dwelling-house and was either part of a building in which the landlord had an estate or interest, or was owned by or under the control of the landlord.
Subsection (1B) was a limitation on the operation of subsection (1A). The disrepair or lack of maintenance which would otherwise be caught by subsection (1A) had to be “such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts … which the lessee, as such, is entitled to use”.
(4) The lift was not part of the structure or exterior of the building. It was within the building, and obviously not part of the exterior. It followed that subsection (1)(a) did not apply, even as extended by subsection (1A)(a).
The lift was an installation, but it was not an installation for the supply of water, gas, electricity or sanitation, or for space heating or heating water, and so it did not fall within subsection (1)(b) or (c) as extended by subsection (1A)(b).
Subsection (1A)(b) extended the installations covered by subsections (1)(b) and (c) so that they were not limited to installations in the dwelling-house but it did not change the sort of installations within the scope of the covenant; nor did subsection (1B) add additional types of installation; it imposed an additional condition which narrowed the application of the implied covenants.
Accordingly, section 11 did not prevent the appellant from recovering the cost of repairs and maintenance of the lift from the respondent.
Justin Bates (instructed by Anchor Hanover Group) appeared for the appellant; The respondent appeared in person.
Eileen O’Grady, barrister
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