Landlord and tenant — Service charges – Communal heating system – Appellant liable to contribute to costs of heating by estoppel – Whether liability terminated by disconnection of heating system to individual flat – Appeal allowed
The appellant held a long lease of a three bedroom flat, contained within a 1930s purpose-built block of 36 flats of varying sizes, at Cambridge Park Court, Twickenham, Middlesex. The lease was granted in August 1976 and required the landlord to provide services, and the tenant to contribute towards their costs by way of a variable service charge. The appellant’s flat had been disconnected from the communal heating and hot water system in March 2014, with permission from the landlord, following problems with the supply of heating from the communal system. In October 2008, the communal heating system had effectively ceased to reach the appellant’s flat, having previously been satisfactory, and it had never been restored. The appellant had since been charged the full contribution to the cost of the heating and hot water, but he said that he should contribute only 5% to reflect the benefits he received from the heating to the common parts. The actual cost of the heating and hot water provision was not in dispute.
The appellant sought the determination of the first-tier tribunal (FTT), pursuant to section 27A of the Landlord and Tenant Act 1985, as to the amount of service charges which he was liable to pay to the respondent management company (and freeholder), in respect of the service charge years since 2014. The issue identified by the FTT was whether the appellant was liable to contribute towards the full cost of the heating and hot water provision or some lesser sum from March 2014. Having considered all the documents provided, the FTT determined that the full amount of £5,008 was payable by the appellant.
The appellant appealed contending, amongst other things, that: (i) in the absence of an express obligation to contribute to the cost of communal heating, the implied liability was conditional on the service being provided; and (ii) the FTT should have considered whether the service was of a reasonable standard under section 19(1)(b) of the 1985 Act.
Held: The appeal was allowed.
(1) The FTT had been right to conclude that the appellant was estopped by the parties’ conventional dealings from claiming that his lease did not entitle the respondent to recover the cost of providing heating and hot water. However, in the absence of any express obligation in his lease to contribute to the costs of communal heating, the appellant’s conventional estoppel liability was conditional on that heating being provided, and such continuing liability terminated when, through no fault on his part, the appellant disconnected the flat from the communal heating system in response to the respondent ceasing to provide adequate heating in and after 2008. The FTT fell into error in considering whether the appellant remained liable to contribute towards the costs of the heating and hot water after his disconnection from the communal system without considering the potential effect of the respondent’s persistent failure to provide heating to a reasonable standard during the period 2008 to 2014. The reasons established by the appellant for disconnecting the flat from the communal heating system rendered it unjust to expect the appellant to continue to contribute towards the costs of fuel oil or the maintenance of the communal heating plant. Parties who established a conventional arrangement by estoppel could terminate it. If one party elected to resile, the other could do likewise, and that would terminate the convention and the estoppel it would have supported. Thereafter, it was not open to either party unilaterally to reinstate the convention; that required the consent of both parties to the estoppel: Roundlistic Ltd v Jones [2016] EGLR 56 followed.
(2) The FTT fell into error in failing to consider the potential application to the present case of the provisions of section 19(1)(b) of the 1985 Act. Had it done so, it should have concluded that since 2008 heating had not been provided to the flat to a reasonable standard; that that had led the appellant to disconnect the flat from the communal heating system so that that service was no longer being provided at all, still less to a reasonable standard; and that, in consequence, the appellant was no longer liable to contribute to the cost of heating the flat after the disconnection in 2014. It was clear that the appellant was asserting that he had been given permission to install an independent heating system because for six years the communal system failed to supply effective heat to his flat, and the respondent had been unable to rectify the problem. Once, with the respondent’s consent, the flat had been disconnected from the communal heating system because the respondent had proved incapable of supplying heating to the flat to a reasonable standard, the FTT should have considered whether heating had been supplied to the flat to a reasonable standard during each of the three service charge years after the disconnection. The only possible answer was no. The FTT had failed to have any, or any sufficient, regard to the fact that the appellant had derived no benefit from the heating after the disconnection because he had been compelled to disconnect the flat from the heating system because the heating provided prior to disconnection had not been of a reasonable standard and no improvement had been in view. In those circumstances, the only reasonable disposition of the application should have been to determine that no sums should be paid in respect of the flat for the provision of heating after the disconnection from the communal heating system.
The appellant appeared in person; The respondent did not appear and was not represented
Eileen O’Grady, barrister
Click here to read a transcript of Saunderson v Cambridge Park Court Residents Association Ltd
