Service charge – Exterior repairs – Replacement of external windows – Terms of lease requiring appellant tenant to contribute to costs incurred by respondent landlords on repairs and maintenance to “exterior… and all structural parts” of block – Separate provision dealing with replacement of window frames – Leasehold valuation tribunal finding service charge payable in respect of replacement of all window frames in block — Whether window frames included in exterior and structural parts of block – Whether excluded by reason of separate provision for replacement – Appeal dismissed
The appellant held a long lease of a flat that she acquired from the respondent local authority under the right-to-buy legislation. The flat formed part of an estate of six blocks that were owned by the respondents. The appellant’s lease contained repairing obligations owed by the respondents in respect of “the block” in which her flat was situated, and for which she was obliged to pay a service charge. These included, in the fourth schedule, an obligation to “repair… and maintain the exterior of the Block… and all structural parts thereof” (para 2) and to “repair and maintain the exterior of the window frames… and as often as necessary to replace the whole or part of the window frames” (para 3). The demise to the appellant expressly included the interior part of the window frames and the glass in them “subject to the [respondents’] duty to maintain the same as provided in… the Fourth Schedule”.
In 2004, the respondents began a major works programme on the estate, which included the replacement of the timber window frames of a number of flats with PVC units. The appellant objected to having her windows replaced and the respondents did not replace them; the appellant subsequently installed new windows at her own expense. The respondents levied a service charge of £7,251 in respect of the works, which the appellant paid. A substantial part of that sum represented the cost of replacing the window frames of other flats in the block.
On an application to the leasehold valuation tribunal (LVT), under section 27A of the Landlord and Tenant Act 1985, the appellant argued that under the terms of her lease, properly construed, she was not liable to contribute to the cost of replacing windows in the block other than those in her own flat. The LVT rejected that contention, and the appellant appealed. She submitted, inter alia, that any doubt as to the meaning of the relevant provisions in the lease should be resolved in her favour, as a consumer, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.
Held: The appeal was dismissed.
The words in the lease providing for the repair and maintenance of “the exterior of the Block” and “all structural parts thereof” were apt to cover repair and maintenance of exterior windows: Sheffield City Council v Oliver [2008] PLSCS 276 and Irvine v Moran [1991] 1 EGLR 261 applied. Paragraphs 2 and 3 of the fourth schedule did not provide for mutually exclusive obligations. Paragraph 3 fulfilled the function of permitting the different responsibilities of the lessee in respect of the interior of the window frames, and the respondents in respect of the exterior, to be brushed aside when the frames needed to be replaced; there was no reason to read it reducing the ambit of para 2. There was no ambiguity over the scope of para 2. Even if there were, the 1999 Regulations would not necessarily have required it to be resolved in favour of the appellant. Paragraph 2 imposed obligations on the landlord, in the absence of which a lack of repair to the exterior windows that adversely affected the appearance of the block could affect the value and enjoyment of the appellant’s flat. Accordingly, the most narrow construction of para 2 was not necessarily the one “most favourable” to the appellant as lessee.
Justin Bates (instructed by Anthony Gold) appeared for the appellant; Jon Holbrook (instructed by Ashford Solicitors, of Exeter) appeared for the respondents.
Sally Dobson, barrister
