In Tann v Bhundia and others [2022] UKUT 268 (LC) the Upper Tribunal (Lands Chamber) was asked to determine the extent of the freeholders’ liability to repair a horizontal concrete slab that formed part of an extended roof.
The first respondents were the freehold owners of a house comprising two maisonettes situated in London, NW10. The ground floor flat was held on a long lease by the appellant. The first floor flat was held on a long lease by the second respondent.
The ground floor flat had been extended beyond the first floor. The roof of the extension was the balcony of the first floor flat. The roof extension consisted of a concrete slab with a ceiling below and an asphalt surface above. The concrete slab was in need of repair. Pursuant to section 27A(3) of the Landlord and Tenant Act 1985, the freeholders applied to the First-tier Tribunal for a determination as to whether they were liable to repair the concrete slab and if so, whether they could recover the costs of the same from the lessees by way of service charge.
The FTT found the concrete slab had been demised to both lessees. Under the repairing covenants of the leases, the freeholders were only obliged to repair those parts of the building that were “used or capable of being used by the lessor and the lessee”. The obligation for the lessees to pay service charges only extended to the freeholders’ costs of carrying out that obligation. Additionally, the FFT found that although the freeholders’ repairing obligation extended to party walls and party structures, the freeholders did not use nor were capable of using the concrete slab between the maisonettes, and were not liable for its repair under either of the leases. The appellant appealed.
In allowing the appeal, the UT noted that the FTT had failed to provide reasons for its decision concerning the freeholders’ liability to repair party structures, but not the concrete slab.
The UT found that both leases were silent in relation to the concrete slab and the rest of the horizontal structure between the maisonettes. Relying on Sturge v Hackett [1962] 1 WLR 1257, the UT found that in the absence of an express reservation a lease must include in a demise of part of a building divided horizontally or vertically the external walls enclosing the part so demised. In the present case the leases did not contain any express reservation of the structure of the building to the freeholders. The UT found that both leases included the external walls. Further, the horizontal structure between the maisonettes, including the concrete slab, was also not reserved to the freeholders.
The UT noted the problems involved with a horizontal division of the structure between two flats. Relying on Dowding and Reynolds on Dilapidations, the UT commented that the usual arrangements for flats was that the demise “extends from the underneath of the flat’s own floor (excluding the horizontal structure below) to the underneath of the floor of the flat above (including the horizontal structure above)”. In the circumstances, the UT determined that the concrete slab and the horizontal structure between the two flats were demised with the ground floor flat and the appellant was liable for its repair.
Lastly, the UT determined that the second respondent was required to contribute to the cost of repairs to the concrete slab equally. The appellant could require the freeholders to enforce that covenant with any payment received passed onto the appellant.
Elizabeth Dwomoh is a barrister at Lamb Chambers
