Landlord and tenant – Service charge – Tenancy agreement – Tenancy agreement specifying in schedule services to be provided by landlord and paid for by tenant through service charge – Landlord charging for removal of rubbish in car park not specified in schedule – Whether terms of agreement permitting landlord to add to those services so as to provide (and charge for) service not specified – Appeal allowed
The appellant held a flat at 12 Portland Street, Swinton, Mexborough from the respondent on an assured weekly tenancy which commenced on 3 March 1997. The appellant’s flat was a first-floor flat in a building comprising eight flats built in early 1997. The building comprised four ground-floor flats, each with their own entrance from the front garden side and four first-floor flats which have an entrance from the rear. A car park was sited to the rear of the building. At the front of the building there were three small lawns with hedging to the front boundary.
The tenancy agreement provided for the payment of a weekly rent (which could be varied in accordance with the agreement and the relevant statutory provisions). The tenancy agreement also made payable a service charge, which initially was £2 per week. The agreement provided that the expression “Rent” referred to the sum of the net rent and service charge set out in the agreement or as varied from time to time in accordance with the agreement.
A problem arose regarding fly tipping of waste in the car park. During one of the relevant service charge years, the respondent found it necessary to ensure that steps were taken from time to time to remove bulk rubbish from the car park. Thereafter the respondent included the cost of doing so as an element of the total costs which were to be recovered through the service charge. The appellant was asked to pay his proportion of those total costs by way of service charge.
The appellant applied to the First-tier Tribunal (FTT), pursuant to section 27A of the Landlord and Tenant Act 1985, to determine whether such a charge was reasonable. The appellant considered that, because the tenants did not have exclusive use of the car park, they should not be responsible for the cost of bulk rubbish removal. The tribunal concluded that the respondent was entitled to include as part of the service charge which the appellant was required to pay, the costs of the bulk rubbish removal.
Permission to appeal to the Upper Tribunal was granted in relation only to the issue of bulk refuse removal costs. The tribunal ordered, with the agreement of both parties, that that matter should be decided upon written representations.
Held: The appeal was allowed.
(1) The question was whether the FTT’s decision, that the fact that the tenancy agreement made provision for a variable service charge, entitled the respondent to charge for the service of bulk refuse removal in addition to those services originally specified in the schedule to the tenancy agreement. It was clear that, unless the provisions of the tenancy agreement conferred on the respondent the right to add to the services for which a service charge was to be paid, the respondent was not entitled to charge the cost of bulk refuse removal as part of the service charge. That was because the tenancy agreement as it stood made clear that the landlord was to provide the services itemised in the schedule and that the appellant should pay a service charge for those services. Those services did not include the maintenance (whether by bulk refuse removal or otherwise) of the car park or other parts of the common parts. It was not suggested that the bulk refuse removal was part and parcel of the garden maintenance specified in the schedule.
(2) The provisions of the tenancy agreement did permit the respondent to charge through the service charges for the provision of services other than those set out in the schedule. However, although the tenancy agreement contained provisions to the effect that the service charge would be variable and reviewed annually and that the service charge might be increased or decreased, that was to be done according to the costs incurred during the service charge account period in the provision of services. What was contemplated was a variation in the amount payable by way of service charges to reflect the variation in costs in providing the specified services (ie specified in the schedule to the tenancy agreement) for which a service charge could be claimed.
(3) The provisions of the tenancy agreement could not be read as entitling the respondent to add to the scheduled services, for which a service charge could be made, by including items which were not previously there. The tenancy agreement contained a covenant by the respondent to take reasonable care to keep the common parts in reasonable repair and fit for use by the relevant occupiers. It appeared that in order to comply with that covenant the respondent was required to clear bulk refuse from time to time from the car park. When the tenancy agreement was entered into, no provision was made for the appellant to contribute through his service charge towards the cost of the respondent of complying with its obligations under this covenant.
The opening words of clause 1(3) of the tenancy agreement were clear and provided that the respondent was to provide by way of services those matters which were itemised in the schedule. The appellant was obliged to pay a service charge for those services (not for those services plus some other matters, especially matters which the respondent was already liable to perform pursuant to the covenants in the lease). It followed that the respondent was not permitted to include within the service charge the costs of clearing bulk refuse from the car park.
Eileen O’Grady, barrister
Click here to read a transcript of Wilcock v The Guinness Partnership Ltd
