First-tier Tribunal Clarifies Service Charge Recoverability

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BJ/LSC/2024/0256 Property : [ADDRESS] [POSTCODE] Applicants : [redacted] of Viridian Apartment (as per the schedule attached to the application) Representative : Mr [COUNSEL], counsel Respondents : [redacted] [NAME] Association* (2) [COMPANY] : (1)Mr [COUNSEL], counsel (2)Ms [COUNSEL], counsel Type of application : For the determination of the liability to pay service charges under section 27A of the Landlord and Tenant Act 1985 Tribunal members : Judge [NAME] 10 [ADDRESS] [POSTCODE] Date of hearing Date of decision : 21-23 May 2025 7 July 2025

DECISION

2 2 Decisions of the tribunal (1) The tribunal makes the determinations as appear below.

____________________________________________________ The application 1. The applicants seeks a determination pursuant to s.27A of the Landlord and Tenant Act 1985 (“the 1985 Act”) in respect of the payability of service charges for the years 2018 to 2025. Background 2. The first respondent holds a headlease of [NAME], [ADDRESS], [POSTCODE] (‘[NAME]’) made between [RESPONDENT[COMPANY] (1) [NAME] [RESPONDENT[NAME] (2) and [RESPONDENT] (3) dated 27 April 2007. The first respondent sub-let the [NAME] within [NAME] on long leases.* Some of those sub-lessees are the applicants in this application. Since around 2014, the first respondent’s practice has been to recover the entirety of the service charge it pays to the [NAME] respondent from the applicants and the other sub- lessees. Although prior to that time, it did not seek to recover those charges from the applicant sub-lessees. [*The landlord in [NAME] is known as [NAME] [RESPONDENT] [COMPANY] although service charge demands are made in the name of [NAME] but the name of the landlord pursuant to ss.47/48 of the Landlord and Tenant Act 1987 is given as [NAME] [RESPONDENT] The [NAME], Building and [NAME] 3. [NAME] is registered under TGL300662* and is part of a larger building that is situated on land registered under title number TGL 248073* (‘the [NAME]’). The building of which [NAME] forms part, is a crescent type shaped building that was formerly the [COMPANY] and comprises a further seven blocks (V2 to V8) (‘the Building’). *bold added 4. Mr [COUNSEL], counsel for the applicants told the tribunal that [NAME] (together with [NAME] V8 – not part of this application) is the part of the Building that was designated for social housing. [NAME] of [NAME] are shared ownership leases. The Building includes a basement car park. Other than part of the car park, it is not possible to access any other part of the Building or [NAME] from [NAME]. [NAME] has its own entrance from [ADDRESS] and its own door entrance system. A [NAME] desk and courtyard is situated between [NAME] V3 and V4 and is accessible from the corner of [ADDRESS] and [ADDRESS]. The [NAME] includes a large communal garden (inaccessible from [NAME]) that sits in the middle of the Building and bicycle storage.

3 5. The first respondent holds a headlease of [NAME] only. It has sub-let the [NAME] to individuals on long leases which includes the applicants. The balconies and terraces (to which the flat owners have sole access) are not demised under the headlease and have been retained by the freeholder. The relevant provisions of the headlease and sub-leases are set out in more detail below.

6. Neither party requested an inspection and the tribunal did not consider that one was necessary to determine the issues between the parties, as these centred on the construction of [NAME] rather than a factual dispute as to the layout of the [NAME]/Building/[NAME]. The hearing Preliminary matters 7. The applicants were represented by Mr [COUNSEL] of counsel at the hearing and the first respondent was represented by Mr [COUNSEL] of counsel. The [NAME] respondent was represented by Ms [COUNSEL] of counsel. On discussion with all the parties, it was agreed that the [NAME] respondent had no real role to play in these proceedings as it is not a party to the shared ownership leases (i.e. the subleases of the applicants). The [NAME] respondent had not sought to be a party to this application but had been joined at the direction of the tribunal on 21 November 2024 on the request of the first respondent.

8. Consequently, the tribunal directed with the agreement of the parties that the [NAME] respondent was not required to be a party to the application and the tribunal made a direction to that effect pursuant to rule 9 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) rules 2013.. However, for the sake of clarity, the [COMPANY] ([COMPANY]) shall be referred to as the first respondent throughout this decision.

9. The tribunal was provided with the following: (i) A digital hearing bundle of 1835 pp. (ii) Bundle of authorities of 263pp. (iii) Applicants’ skeleton argument. (iv) First respondent’s skeleton argument. (v) Note for the Management Company ([NAME] respondent) (vi) [NAME]’s correspondence bundle The issues 10. At the start of the hearing the parties identified the relevant issues for determination as follows:

4 4 (i) The main issue is whether the applicants’ sub leases with the first respondent permit the first respondent to recover sums as service charges which it has paid as a tenant to its superior landlord including the Maintenance Expenses in respect of the [NAME] under Title Number TGL248073. (ii) This is primarily a matter of construction of the various leases.

11. The applicants asserted that the terms of [NAME] do not permit the first

respondent to recover the entirety of the service charge that it pays to Viridian

Residents Management Company (‘the Management Company’), from the

applicant [NAME]. The applicants asserted [NAME] limit the first

respondent to recovering only the cost of services that are provided to [NAME]

or that relate to the maintenance, repair etc. of [NAME]. Consequently, the cost

of services that are provided to the [NAME] and that cannot or enjoyed by

the applicants are not recoverable by the first respondent from the applicants. 12. Further, the applicants also contended that certain services provided to other

lessees have not been reasonably incurred as they have not and cannot be

enjoyed by the applicants. In addition, the applicants asserted that the

apportionment of the lift maintenance contract is not reasonable and should

more properly be divided between the eight blocks thereby allocating 1/8 of the

costs to [NAME]. The applicants also asserted that, although the service charges

demanded have been paid, they have but done so under protest from as early as

2014. Therefore the applicants are permitted able to continue to dispute them

as they have not been accepted or agreed.

13. The first respondent disagreed with the applicants’ assertions and submitted: (i) that the first respondent could recover all of the charges it paid to the Management Company in respect of the [NAME]; (ii) that all charges had been reasonably incurred and (iii) the applicants had, by their conduct, admitted the charges were payable and could no longer dispute them. The applicants’ case 14. In his skeleton argument Mr [NAME] identified the questions the tribunal was required to answer as: (i) What costs does the sub-lease permit the first respondent

to recover from the applicants?

5 To that end:

(a) Can the meaning of ‘[NAME]’ (which presently means

[NAME]) in the sub-lease be rectified by construction to

mean the [NAME]?

(b) In any event, is the provision of services to the

[NAME] (that are not also provided to or

enjoyed by [NAME]) recoverable as a service

charge?

(c ) If either question is answered in the negative,

what type of costs are not recoverable? And (i) If the provision of services to the [NAME] (that the applicants do not have a right to enjoy) is a cost that is recoverable under the sub-lease, is it reasonably incurred by reason of the applicants having no entitlement to enjoy such service under the sub-lease or because it is not reasonable to expect a [NAME] of social housing to pay for? (ii) Was the cost of maintaining the flat balconies, gulleys and drains reasonably incurred? (iii) Is the apportionment of the lift maintenance contract reasonable? (iv) Are the applicants prohibited from challenging past service charges because they have been paid.

15. Mr [NAME] told the tribunal that the application covers service

charge years 2018 to 2025. The service charge year runs to 30

September. The sums demanded by the first respondent from the

applicants are separated into:

(1) The charges that are unique to [NAME] (V1A) (2) The wider [NAME] (V1R) (excluding gym) (3) Balcony/terraces (4) Heating, HW & Water (5) Car park spaces (if applicable)

16. The tribunal was told that applicants do not dispute that the charges for the car park,

heating and hot water expenditure are payable. The applicants also accept that the

6 6

charges for the balcony/terraces are prima facie payable but assert

they have not been reasonably incurred in any of the years in dispute. 17. The applicants asserted that the V1A account, demonstrates that this

expenditure relates to the cost of the common area repairs, cleaning, lighting and

general maintenance of [NAME]. It also includes the cost of employing an

accountant and managing agents and provisions to a ‘renewals sinking fund’ and

‘cyclical maintenance fund. 18. The applicants asserted that [NAME] accounts also includes the cost of

certain services that the applicants are not able to enjoy as of right under the sub-

lease. These include the [NAME] (as it is situated in [NAME] V4 that the applicants

have no right to access) and grounds maintenance (there are no grounds that [NAME] residents have a right to access). Therefore, itis the applicants’ case that these

costs relate to [NAME] expenditure and should not be chargeable to the

applicants. 19. The applicants also set out the heads of service charge in issue in a Scott Schedule

included in the hearing bundle of documents. The Head Lease 20. The applicants described the head lease as: On 27 April 2007, [RESPONDENT[COMPANY] granted the first respondent a lease of [NAME] (‘the headlease’) for a term of 155 years from 1 June 2006. The Management Company was a party to the lease as the manager responsible for providing services and collecting a service charge. The demise was of the Property, i.e. ‘the land shown edged red on Plans 1 to 7 inclusive as more particularly described in the Third Schedule or any part hereof”, together with the rights set out in Fourth Schedule.

21. The Third Schedule defines the Property as including: ALL THOSE Apartments [i.e. individual apartments in the Property] TOGETHER WITH the Internal Common Parts [i.e. internal common parts which serve the Apartments within the Property shown coloured green on Plans 1 to 7 inclusive and shown edged red on Plans 2 to 7 inclusive TOGETHER WITH the access areas shown on Plan 1 being part of the Building EXCEPTING AND RESERVING from the demise the main structural parts of the Building including the roof foundations and the external parts thereof and the Balconies and the Patios 22. Plans 1 to 7 indicate that the individual flat balconies and terraces were not

within the Property. Nor was the ramp or access stairs from [ADDRESS] or the

car park/bin store underneath. In addition to the Property, the first

respondent was granted the following limited rights over the [NAME]: • Passage of water, electricity etc through [NAME].

7 • Support and shelter from other parts of the Building i.e. the Building within the [NAME] comprising inter alia the Property • Benefit of covenants entered into by tenants of other properties • Rights of access to and entry from the other parts of the [NAME] i.e. all of the land within Title Number TGL24807 and the Building as are necessary for performance of the Tenant’s obligation or the repair decoration maintenance or inspection of the Property • Right to pass and re-pass at all times and for all purposes of access to and egress on foot from the Apartments within the Property only over and along the Accessways i.e. the footpaths and accessways shown cross hatched black and coloured orange on Plan 2 i.e. the stairs and ramp from the highway on [ADDRESS] • Right to pass and re-pass at all times for the purpose of access to and from the Allocated Parking Spaces i.e. the 27 parking spaces shown shaded blue and hatched black on Plan 1 with or without vehicles (as appropriate) and on foot only to the Bin Store i.e. the bin stores and other storage area shown coloured brown on Plan 1 over and along the [ADDRESS] i.e. the access roads and pathways within the [ADDRESS] shown cross hatched on Plan 1 within the [ADDRESS] i.e. the basement car parking area as shown on Plan 1 • Right to use the Bin Store, security door entry system and communal television reception system • Exclusive use of the Allocated Parking Spaces Exclusive right to use the Allocated Balconies i.e. those attached to the Apartments and edged in blue on the plans Exclusive right to use the Allocated Patios i.e. those attached to the ground floor Apartments and edged in blue on the plans Right to read meters in the plant room.

23. As a result, the applicants asserted that [NAME]’s demise is limited to:

(a) The 38 self-contained [NAME] (not including the

balconies/terraces).

(b) The internal halls and stairwells on the ground and each

upper floor.

(c ) The stairwell in the basement.

8 8 24. The applicants asserted that beyond being entitled to support, shelter and the

passage of services, the tenant under the headlease had no rights over the

[NAME] beyond the balconies/terraces attached to each flat, the car park,

bin store and the access from [ADDRESS]. For example, the tenant under

the headlease (or those deriving title under it) has no right to use the communal

garden, gym or any of the other blocks in the [NAME]. It has no right to

enter the courtyard or the area in [NAME] V4 in which the [NAME] is situated 25. The applicants asserted that the Tenant of [NAME]’s limited rights over the

[NAME]/Building are not reflected by the service charge obligations in the

head lease. Para 2 of Part 1 to the Eighth Schedule obliges the first respondent

[NAME] to pay to the Management Company the Tenant’s Proportion, i.e.

‘the proportion of the Maintenance Expenses payable by the

Tenant in accordance with the provisions of the Seventh

Schedule.’ 26. The Maintenance Expenses are defined as:

the ‘moneys actually expended or reserved for periodical

expenditure by or on behalf of the Management Company in

carrying out the obligations specified in the Sixth

Schedule” 27. The obligations in the Sixth Schedule include: Repairing, maintaining, inspecting and as necessary reinstating or renewing the [NAME] and Maintained Property, i.e. all parts of the [NAME] which are not included in the demise of the Property or any of the other Dwellings … and the maintenance of which are the responsibility of the Management Company. Keeping the Maintained Property and Accessways (hard and soft landscaping) in good repair and clean and tidy. Maintaining a CCTV system. Provision of a 24 hour [NAME] service. Provision and maintenance of communal telecommunications reception apparatus, video door entry system and other equipment relating to the Building.’ Window cleaning. Maintaining the water feature and garden.

Lighting of internal common parts. 28. The first respondent has therefore covenanted to pay for services that it does

not and is incapable of benefiting from.

9 [NAME] 29. [NAME] demise the Premises, i.e. the Flat edged red on Plan 1. By clause

3(2)(c), [NAME] covenants to pay the Service Charge in accordance with

clause 7. 30. The Land Registry Prescribed Clauses notes the Landlord’s Title number as

being: TGL 300662. It records ‘none’ after LR2.2 (Other title numbers).

31. The sub-lease’s particulars contain the following definitions: Title number: TGL300662 Property: [NAME], [COMPANY], [ADDRESS], [POSTCODE] Landlord: [NAME] [RESPONDENT] [COMPANY] Landlord: [RESPONDENT[COMPANY]: [details of headlease] [NAME]: All the land and building registered under title number TGL300662 Building: [NAME] erected on the [NAME] and known as [NAME]: [the flat] more particularly described in the First Schedule Service Charge: In respect of Service Provision relating to the [NAME] and Car Parking Space (if any) such reasonable and appropriate proportions as the Landlord shall determine 32. Under clause 5 the Landlord covenanted to:

(2) … keep or procure that the Building is kept insured

(3) That (subject to payment of the rent and service charge and

except to such extent as the [NAME] or the tenant of any

other part of the Building shall be liable in respect thereof

respectively under the terms of this Lease or of any other lease)

the Landlord shall maintain repair redecorate and renew or

procure the maintenance repair redecoration and renewal of

(a) the roof foundations and main structure of the Building and all

external parts thereof … and all parts of the Building which are not

the responsibility of the [NAME] under this lease or of any other

10 10

[NAME] under a similar lease of other premises in the Building

…

(b) the pipes sewers [etc] … in under and upon the Building (except such as serve exclusively an individual flat …

(c) the Common Parts of the Building and the Common Parts of

the [NAME].

(4)That subject as aforesaid and so far as practicable the

Landlord will keep or procure that the Common Parts

of the Building are kept adequately cleaned and lighted …

33. Common Parts of the Building is defined as meaning: The entrances lobbies landings staircases storerooms hallways ducts risers and other parts of the Building which are intended to be or are capable of being enjoyed or used by some or all of the owners tenants and occupiers of other premises in the Building 34. Common Parts of the [NAME] is defined as meaning: The access roadways and footpaths, forecourts and lighting (if any) (so far as the same are not adopted or do not fall within the curtilage of any plot on the [NAME]) the Parking Spaces and Visitors Parking Spaces (if any) and cycle parking area (if any) on the [NAME] and Conducting Media (as defined the [NAME])* hedges and trees and shrubs any boundary or perimeter wall entrance feature or fence of the [NAME] or part thereof (except as are within the cartilage [sic] of any plot on the [NAME]) and any communal gardens landscaped areas (except any private enclosed garden) or facilities or areas of the [NAME] made erected or constructed on the [NAME] within the Perpetuity Period intended to be capable of being enjoyed or used by the owners tenants and occupiers of other premises on the [NAME] *no definition exists in the [NAME]

35. The applicants asserted that clause 7(5) of the sub-lease which states:

The relevant expenditure to be included in the Service

Provision shall comprise all expenditure reasonably

incurred by the Landlord in connection with the repair

management maintenance and provision of services for

the Building [i.e. the [NAME] of flats erected on the [NAME]

and known as [NAME] and shall include (without prejudice to

the generality of the foregoing):-

(a) the costs of and incidental to the performance of the

Landlord’s covenants contained in Clause 5(2), 5(3)and 5(4

11

Consequently, the liability to pay service charges does not mirror the

headlease. The applicants submitted that they are only obliged to pay towards

costs relating to the Building and are not obliged to costs of any part of the

[NAME] not enjoyed by the [NAME]. 36. The applicants argued that the definition of the word ‘[NAME]’ must mean the

services provided to the [NAME] and that ‘[NAME]’ in [NAME] does not

mean the ‘[NAME]’ as contended by the first respondent. In any event, the

first respondent is unable to recover the cost incurred by the Management

Company through the provision of services for the [NAME], where the

services are not provided to the [NAME]. 37. The applicants asserted that means, for example, that the cost of the [NAME],

the provision of communal water and electricity, the cleaning of common areas,

litter picking and sweeping, the emergency lift line, the provision of the

corridor heat removal system, the provision of the PV meter hire, pest control,

professional fees, management fees and directors and officers insurance

that relate solely to the [NAME] are not recoverable as a service charge by

the first respondent from the applicants. 38. The applicants submitted that the applicants’ sub-leases should be given

their natural and ordinary meaning and a court will start from the position that

people do not make ‘linguistic mistakes, particularly in formal documents’:

[NAME] v [NAME] [1998] 1

WLR 896. The one exception is where two conditions are satisfied: (1) there is a clear mistake in the parties’ use of language and (2) it is equally clear what correction ought to be made Arnold v Britton [2015] UKSC 36; [2015] A.C. 1619. 39. Mr [NAME] submitted that this is a very high bar. It typically applies to

clauses that make no sense or are an obvious nonsense. It is not enough that

due to the draftsman’s ineptitude and internal inconsistencies within the

contract there may have been a mistake; it must be clear that there has been

and it is also obvious how the mistake is to be remedied: see for example [COMPANY] v [COMPANY] [2021] EWCA Civ 867; [2021] ICR 1648 at [32]. 40. The applicants do not accept that the definition of ‘[NAME]’ in the sub-lease is a

clear and obvious error. In circumstances, where the first respondent’s title and

[NAME] in land was limited to [NAME] and it has very limited rights over the

[NAME] it does not follow that the wrong title number was obviously

inserted into the definition of [NAME]. It is more likely (and at least possible) that

the person drafting the lease intended to limit the definition of [NAME] to land

that was actually owned by the first respondent. 41. The fact that the draftsman was aware that TGL 300662 was limited to

the [NAME] V 1 is evidenced by the fact that it was referred to on the same

page, when defining the extent of the first respondent’s title and in the Land

Registry prescribed clauses. Moreover, the land Registry prescribed clauses did

not note any other title and is evidence that the draftsman did not have any other

title in mind.

12 12 42. Further, the definition of ‘[NAME]’ preferred by the first respondent lacks any

commercial reality. It is highly unlikely that the parties to a shared ownership

lease would have intended that the tenant ought to contribute towards the cost

of maintaining, renewing, redecorating and keeping in repair the non-social

housing part of the [NAME] it has no right to use and does not benefit from.

Although the Management Company has not charged the first respondent for

the maintaining of the gym, were it to do soon the first respondent’s

construction of the applicants’ leases, so it would be entitled to pass this cost

onto them. 43. Furthermore, when the lease is read as a whole, it is apparent that it was not

intended that the [NAME] was to cover the entire

[NAME]. The sub-lease’s regulations (set out in the [NAME])]

draw a distinction between the Premises, the Building and the Common Parts.

Common Parts’ is not defined by the lease but it must be a reference to one or

both of the defined terms in the lease, i.e. the Common Parts of the Building

or the Common Parts of the [NAME]. 44. In the context of the regulations, references to the Building are obviously

references to the Common Parts of the Building (because both definitions have

the same meaning, i.e. any internal common parts of the [NAME]). The reference

to the Common Parts in the regulations must therefore be to something

different. It can only be in respect of the external parts used in common by the

tenant and others, i.e. any land outside the Building that the tenant has a right

to use, i.e. the car park, bin store and accessways. As a matter of ordinary

language, it is not possible for a part to be common to the tenant (and to regulate

its use by the tenant) if it is not accessible or capable of use by the tenant.

Common Parts of the [NAME] must therefore be so limited. 45. This construction is supported by the fact that ‘Common Parts’ is also

referred to in paragraph 1 of the Third Schedule i.e. the provision which grants

the sub-tenant rights of access over the Common Parts. Given the first

respondent’s headlease limits the rights of access over the [NAME], the

reference to Common Parts in the Third Schedule could only have included

those parts of [NAME] which the first respondent had rights over (as the

first respondent was not in a position to grant rights of access over land it did

not own or have rights of access over). It must therefore also follow that a

reference to the Common Parts of the [NAME] could not have been intended to

cover land that is not used by the tenant. 46. Additionally, the rights granted under the Third Schedule are conditional

upon the service charge being paid. This suggests an intended link between the

rights to be enjoyed and the service charge. It would therefore make no sense to

prevent a tenant from parking a car in the car park because it had not paid a

service charge in respect of other land it had no rights over. Mr [NAME]

submitted that this construction is supported by the service charge clause

itself. The governing part of clause 7(5) makes clear that only expenditure

incurred in connection with the Building, i.e. [NAME], is to be included. This is

indicative of the fact that works of maintenance that are unrelated to the use

of the Building are not recoverable.

13 47. If the Common Parts of the [NAME] is to include land not connected with the

Building, this would mean that the first respondent is entitled to recover the cost

of procuring the maintenance of parts of the [NAME] it has no right to use

or access and which has no connection to the Building. That would be

inconsistent with the governing part of clause 7(5). 48. Even if the definition of the [NAME] was in error, it is wholly unclear what

correction ought to be made. The first respondent’s construction is far from

being obvious as there could be others. Due to the fact that the sub-lease has

been poorly drafted, and contains many internal inconsistencies and undefined

terms, it is impossible to be sure which definition is to be preferred. The Scott Schedule 49. In the Scott Schedule, the applicants identified the following items as

being in dispute as (i) not payable under the terms of the sub-lease and/or

unreasonably incurred and/or (ii) works not done or done to a poor

standard: 2018 - 2024 V1 - charges: Site staff, [NAME] telephone and internet; patrol logging and lone worker alarm; HV system; grounds maintenance; courtyard and paving jet washing; water supply; lift maintenance and contract administration; cyclical maintenance reserve fund; replanting of [NAME] - [NAME] charges:

Maintenance of timber decking/benches; litter picking and external sweeping; communal electricity; day to day maintenance; consumables and light bulbs; corridor heat removal system; pest control; directors and officers insurance; portable appliance testing; contingency management fee; accountancy fee; independent auditors fee; bank charges; company secretary; professional fees; cyclical maintenance reserve fund; renewals sinking fund; consumables and lightbulbs; drain and gutter cleaning; external cleaning works; CCTV survey of drainage; secure bicycle storage; landlord’s fire door remedial works;

50. In conclusion, Mr [NAME] submitted that: (i) The Tribunal should not rectify the sub-lease by construction and should declare that the first respondent is entitled to recover only all expenditure incurred in connection with the repair management maintenance and provision of services for [NAME]. (ii) The cost of providing a limited [NAME] service to [NAME] is not reasonable.

14 14 (iii) The maintenance and cleaning of balconies, drains and gulleys has not been of a reasonable standard. (iv) It is only reasonable for A to pay 1/8 of the lift maintenance contract. The first respondent’s case 51. Mr [COUNSEL] counsel for the first respondent asserted that there are the following

sub-issues for the tribunal to determine: (1) What does the headlease actually demise?; (2) What rights does the first respondent have under the headlease? (3) What does the first respondent have to pay for? (4) What precisely is demised under the subleases? (5) What is the lessees’ right to use any part of the [NAME] not within [NAME]? (6) What do the shared ownership lessees have to pay for within their service charge contributions? The Property and The Building 52. Mr [NAME] submitted that clause 2 of the headlease demises (i) the Property

(ii) the rights contained in the 4th Schedule; and (iii) rights (if any) in the property register to TGL248073 .

53. Mr [NAME] asserted that page 6 of the lease, ‘the Property’ means: ‘the land shown edged red on plans 1 to 7 inclusive as more particularly described in the 3rd Schedule or any part thereof’ However, this definition is modified, at least for the purposes of registration, at clause LR4, where there is a manuscript amendment to the above definition and LR4 states that in the case of a conflict between LR4 and the remainder of the lease, then for the purposes of registration LR4 shall prevail. Consequently, the modified definition states:

The land shown edged red and coloured green on plan 1 and the land

shown edged red on the plans 2 to 7 inclusive as more particularly

described in the 3rd Schedule.’ 54. Mr [NAME] contended that the modified definition does not cause any real

concern in practice as the 3rd Schedule on page 11 of the headlease

15

reveals that the Property demised to the first respondent consists in

summary of the following (1) All the Apartments (defined on page 4 as being the individual apartments within the Property (2) The Internal Common Parts shown edged red on plans 2 to 7 inclusive (and defined on page 5 as being the internal common parts which serve the Apartments within the Property shown coloured green on plans 1 to 7 (3) The access areas shown on Plan 1 being part of the Building; (4) Various physical elements as set out in subparagraphs (a) to (f).

55. There is then written, significantly: ‘Excepting and reserving from the demise the main structural parts of the Building including the roof foundations and the external parts thereof and the Balconies and Patios.

56.

Accordingly, from the above it be immediately seen that ‘the Property’ is

defined to be smaller in geographical size than the Building. This becomes

all more apparent when one considers the definition of Building on page

5 of the headlease which states; ‘The Building’ means: the Building within the [NAME] comprising inter alia the Property and all structural parts thereof including the roof gutters rainwater pipes foundations floors all walls bounding individual Dwellings therein and all external parts of the Building and all [NAME] not used for the purpose of an individual Dwelling’ 57. In other words, the Building comprises the Property demised to the first

respondent amongst other things. The [NAME]

58. Mr [RESPONDENT] submitted that it is necessary to also consider the definition of ‘[NAME].’ That is also to be found on page 5 of the lease as meaning: …the land described in the First Schedule being the [COMPANY], Sleaford St, Battersea being part of the land and registered under title number TGL248073 59. The 1st Schedule to the headlease assists in describing the [NAME] as: ‘All that piece of land situated at the [COMPANY] [address] now or formerly comprised in title number TGL248073 together with any buildings or structures erected or to be erected thereon or on some part thereof.’

16 16 60. Mr [NAME] submitted that this definition confirms that the ‘Property’ as defined

under the headlease is smaller in extent than the Building, because Building

includes structural parts, external parts, Balconies and Patios. It is also apparent

from the Applicant’s Plan that [NAME] is at the end of a curve of conjoined

blocks. It does not appear to be a separate building. Mr [RESPONDENT] submitted that

the first respondent’s rights under the headlease includes aside from the demise

of the Property, it also demises to the first respondent the various rights set out

in the 4th Schedule, on page 11 of the headlease. These rights include: (i) the right to free passage of utilities from/to the Property through the [NAME]; (ii) the right of support and shelter for the Property by and from other parts of the Building; (iii) the right to enter upon other parts of the Building for certain purposes; (iv) the rights to the exclusive use of Allocated Parking Spaces; (v) the right to use Allocated Balconies; and (vi) the right to use Allocated Patios.

61. These paragraphs at 8-10 of the headlease simply serve to emphasise that those

particular areas are not demised to the first respondent and do not form part of

‘the Property.’ In considering what the first respondent is required to pay for

under the headlease, it is important to understand first that the Management

Company under the headlease is obliged by Schedule 10 to carry out certain

obligations in accordance with Schedule 6 of the headlease in respect of

‘Maintained Property.’ Schedule 2 on page 10 of the headlease defines

‘Maintained Property as: All that part or parts of the [NAME] comprising: (1) The Accessways (2) [ADDRESS]…. (3) All other parts of the Maintained Property (4) The Internal Common Parts including the lifts therein (if any) (5) The structural parts of the Building (including the car park structure) including the roofs, gutters, right water pipes, foundations, floors and walls bounding individual dwellings therein and all external parts of the building including the structural parts of the Balconies and the Patios (6) [NAME] within the [NAME] not used solely for the purpose of any individual Dwelling together with

17 any other parts of the [NAME] which are not included in the demise of the Property or any individual property. 62. The 6th Schedule defines the ‘Maintenance Expenses’ which the Management

Company is entitled to incur. Part A consists of [NAME] costs, Part B consists of

the parking charge, and Part C concerns costs applicable to any or all of the

previous parts of the Schedule. By virtue of the 7th Schedule, paragraph 1 to the

headlease and paragraph 2 of the 8th Schedule. The first respondent covenants

to pay the Part A proportion, the Part B proportion and any Part C costs.

63. Page 6 of the headlease assists in clarifying that : (1) The Part A proportion must be a fair and proper proportion attributable to the Apartments within the Property as determined by the Management Company; (2) The Part B proportion must be a fair and proper proportion attributable to the Allocated Parking Spaces as determined by the Management Company.

64. Therefore, taking all the above as a whole, it is clear that the first respondent

has to pay a service charge in respect of all manner of items outside of its demise,

and outside the 4 walls of [NAME]. As a consequence, the first respondent and

its [NAME] benefit from having a well-maintained [NAME]. [NAME]

65. Clause 2 of the sublease demises: (1) The Premises (the flat described more particularly in the First Schedule); (2) Easements, rights and privileges in the Third Schedule; (3) Rights under the Sixth Schedule.

66. The sublease (at LR4) defines: (i) the Property (for the purposes of land registration) as the premises as defined in the Particulars and Schedule 1 of the Lease. The Particulars page of the sublease defines ‘Property’ as ‘[NAME], [COMPANY], [ADDRESS] [POSTCODE]’ (ii) ‘[NAME]’ is defined in the Particulars as; ‘all the land and building registered under title number TGL300662’ 67. Mr [NAME] submitted that the land and building under the headlease

registered under that title does not comprise the full physical extent of

[NAME]. He asserted that it is notable that the Land Registry describes the

land under title TGL300662 as ‘being [NAME], [COMPANY],

[ADDRESS] [POSTCODE].’ Again, this can only be shorthand,

18 18

because (as discussed above) the Property demised under the headlease

does not include the main structural parts, the external parts, the Balconies

and the Patios of the physical building. ‘Building’ is defined in the Particulars of

the sublease as: “The [NAME] of flats erected on the [NAME] and known as [NAME].’ 68. Mr [NAME] submitted that this is problematic, because of the words ‘erected on the

[NAME]’ as the ‘[NAME]’ is defined in the sublease as being: ‘ the land under TGL300662’ and given that the headlease registered in that Title only demises part of [NAME] to the first respondent, [NAME] cannot be ‘erected on the [NAME]’ because the [NAME] is (strictly construed) geographically smaller than [NAME].

69. Further, it necessarily follows that ‘[NAME]’ cannot be equated to ‘Building,’

as defined in the sublease, because [NAME] is larger in extent than the

land demised to the first respondent under the headlease. Therefore,

strictly construed the definition of ‘[NAME]’ in the sublease describes an area

of land smaller than the Building itself. Mr [NAME] submitted that if any

comparison has to be made, it is that ‘Property’ as defined under the

sublease is identical to (or near identical to) the ‘Building’ under the sublease. 70. Turning now to the last of the matters demised to the [NAME], these are

easements, rights and privileges in the 3rd Schedule. Mr [NAME] contended that

these paragraphs throw up more issues of construction: Firstly, paragraph 1

gives the [NAME] the: ‘right…at all times to use the Common Parts for all purposes incidental to the occupation and enjoyment of the Premises (but not further or otherwise).’ However, “Common Parts” is not defined in the sublease at all, whether in the Particulars or in clause 1. Instead, clause 1 contains two other definitions of ‘Common Parts of the Building’ and “Common Parts of the [NAME].’ ‘Common Parts of the [NAME]’ is very wide, and includes access roadways and footpaths, as well as Car Parking Spaces. However, the definition makes no sense, because all the areas are said to be areas related to the ‘[NAME].’

71. As stated above, the [NAME] as defined in the sublease is geographically smaller

than the ‘Building.’ Mr [NAME] submitted that this is illustrated by clause

1(2)(b)(ii) of the sublease which defines Common Parts of the [NAME]’ as

including (amongst many other things) ‘areas of the [NAME] made erected or

constructed on the [NAME] within the Perpetuity Period intended or capable of

being enjoyed or used by the owners tenants and occupiers of other premises on

the [NAME].’ However, there are no such owners, tenants or occupiers of ‘other’

premises on the [NAME], because the definition of ‘[NAME]’ is such that it can

only geographically contain the [NAME].

72. Further, If that were not problematic enough, paragraph 2 of Schedule 3

purports to grant the [NAME] the full right and liberty, for the purposes of

19

domestic use and convenience incidental to the occupation of the premises, to

go pass and repass along roads, access ways and ramps ‘as fall within the

Property and/or serve the Premises,’ but: (1) There are no roads ‘within’ the ‘Property’ as defined in the sublease (i.e. [NAME]); (2) The only accessways ‘within’ [NAME] are communal hallways/passageways; (3) There are no ramps (ostensibly) ‘within’ [NAME]; (4) There are no footpaths ‘within’ [NAME].

59. Nor can it properly be said that any of those areas ‘serve the Premises.’ 73. They may serve the Property, but that is not what paragraph 2 expressly

says. Therefore, Mr [NAME] submitted that strictly construed, the shared

ownership lease only gives the [NAME] the right to use the Common Parts of

the Building, i.e. those which are all within the four corners of the physical

structure. Accordingly, the shared ownership lessees have no right to use any

other part of the [NAME] which lies outside of [NAME] (save for the right

when they say the meaning of the term ‘Common Parts’ cannot extend any

further than the common parts of [NAME], but that is because of the defect in

draftsmanship in the definition of ‘[NAME],’ and not because the headlease

contains no rights to other parts of the [NAME]. 74. In that latter regard: 1) The headlease clearly defines the ‘Property’ demised to

the first respondent as being less in geographical extent than the ‘Building,’

because the freeholder retains certain parts to [NAME]. By the 4th Schedule to

the headlease, the first respondent as tenant of the Property (as defined in the

headlease) enjoys the benefit of parts not demised to it, whether that is the free

passage of utilities through the [NAME], or the use of the

Accessways, or having the benefit of the maintenance of structural parts such as

the roof. All these parts are ‘Maintained Property’ under the 2nd Schedule to

the headlease for which the first applicant pays a service charge. 75. The first respondent therefore disagrees with the applicants in so far as they

contend that the headlease contains no rights to other parts of the [NAME].

The first respondent has rights to receive various benefits of other parts by

virtue of the 4th Schedule; it may not have been demised those parts, but that is

irrelevant. Rather, clause 2 of the headlease demises to the first respondents the

rights set out in the 4th Schedule. Therefore, the first respondent can demise

those rights to the shared ownership lessees. The fact that it has not effectively

done so is a result of the defect/error in the definition of ‘[NAME]’ in the subleases. 76. Mr [RESPONDENT] submitted that the first respondent further disagrees with the

applicants in so far as they allege that there is some difficulty in the headlease

in that the first respondent pays for parts of the [NAME] it is not entitled to

benefit from under its lease. The first respondent contends that the ‘Maintained

Property’ includes parts which the first respondent may use and/or which it has

the benefit of. By way of illustration, NHHO does not use the water feature, but

it has the benefit of the aesthetics of the same and must contribute to its

20 20

maintenance pursuant to paragraph 18 of Part A of the 6th Schedule to the

headlease. Similarly, a well maintained courtyard/garden provides a visual

benefit. And Emergency response insurance provides yet another benefit. 77. Mr [NAME] submitted in his skeleton argument that the Upper Tribunal (Lands

Chamber) and the Court of Appeal have held that the fact that a tenant derives

no benefit from a service is irrelevant to whether they are contractually bound

to pay for it; Solarbeta Management Co [COMPANY] v Akindele [2014] UKUT 416 (LC)

per HHJ Gerald at para 19, and Billson v Tristem [2000] L&TR 220. 78. Therefore, the flaw in the applicants’ argument is to allege that the definition of

the [NAME] mirrors exactly the extent over which the first respondent could grant

rights. The 4th Schedule to the headlease gives the first respondent rights to

receive the benefit of parts which lie outside the demised premises and even if

no direct use is derived, to pay a proportion towards such parts. Given that the

‘[NAME]’ is said to be ‘all that land and building registered under title number

TGL300662’ this definition of ‘[NAME]’ as drafted in the sublease does not

include or reflect the rights contained in the 4th Schedule to the headlease. That

must be an error. Service charges – the applicants’ contribution 79. Mr [NAME] submitted that by clause 3, the sublessee covenants to pay the service

charge in accordance with clause 7. Clause 7(1) includes phrases such as

‘Building Service Provision,’ ‘[NAME] Service Provision’ and ‘Domestic Cold

Water Consumption Service Provision’ which are not defined under the

sublease. These 3 terms are said to be aggregated to give the ‘Specified

Proportion.’ 80. There are also 2 definitions of ‘service charge’: (1) ‘Specified Proportion of the Service Provision” (in clause 7) (2) ‘In respect of Service Provision relating to the [NAME] and Car Parking Space (if any) such reasonable and appropriate proportions as the landlord shall determine.’ 81. It seems fairly obvious that all the leases should be construed as saying

that the [NAME] should pay a fair and reasonable proportion of the

Service Provision. Service Provision is defined in clause 7(4) as including (a)

an estimate of clause 7(5) matters plus (b) a reserve towards clause 7(5)

matters, but (c) reduced by any surplus left over after any major works

are executed Clause 7(5) provides: The relevant expenditure to be included in the Service Provision shall comprise all expenditure reasonably incurred by the landlord in connection with the repair management maintenance and provision of services for the Building and shall include (without prejudice to the generality of the foregoing):- (a) The costs of and incidental to the performance of the landlord's covenants contained in clauses 5(2), 5(3), and 5(4)

21 (b) to (f) [other matters] 82. The first respondent contends that the words above are sufficient to encompass

the matters for which the first respondent must pay a service charge to the

Management Company under the headlease because: (a) NHHO is contractually obliged to pay a tenant’s proportion of services in respect of the “Maintained Property” under the headlease; (b) This is expenditure which is arguably “reasonably incurred in connection with the provision of services for the Building,” in terms of being a payment “for the benefit of the Building” (i.e. [NAME]).

83. The sublease does not state that the Respondent may only recover sums reasonably

incurred ‘for’ or ‘in’ the repair etc and provision of services for the Building. The use

of the words “in connection with” permits recovery of (indirect) costs such as

those under the headlease. c. All the [NAME] derive a benefit from that

payment by NHHO, because without such a payment, the Management Company

would probably not be able 13 to repair the roof or provide electricity to [NAME] (to

give but 2 illustrations). Moreover, a well-maintained [NAME] means there will

be no diminution in value of the applicants’ assets. On this point, Mr [NAME]

submitted the FTT should bear in mind [COMPANY] v

[NAME] & [COMPANY] [1999] L. & T.R. 237 (which concerned charges payable under

the lease of commercial premises in a shopping centre but is cited in [NAME]

v Woelke [2013] UKUT 349 (LC) [2014] L. & T.R. 9), in which Mummery L.J.

provided the following general guidance (at 243): The purpose of the service charge provisions is relevant to their meaning and effect. So far as the scheme, context and language of those provisions allow, the service charge provisions should be given an effect which fulfils rather than defeats their evident purpose. The service charge provisions have a clear purpose: the landlord who reasonably incurs liability for expenditure in maintaining the Telford Shopping Centre for the benefit of all its tenants there should be entitled to recover the full cost of doing so from those tenants and each tenant should reimburse the landlord a proper proportion of those service charges.’ 84. In a similar vein, clauses 5(2) and 5(3) and 5(4) require the first respondent

amongst other things) to: (a) insure the Building or ‘procure that the Building is

insured.’ (b) repair etc the roofs foundations or main structure of the Building or

‘procure’ those things. (c) keep or ‘procure’ that the Common Parts of the Building are

adequately cleaned or lighted. Clause 5(3)(c) extends the obligation to repair/ procure

the repair etc. to the Common Parts of the Building and the Common Parts of the

[NAME]. 85. The first respondent contends that the payment of the Tenant’s Proportion

under the headlease is a ‘cost of and incidental to’ the first respondent procuring the

above matters. It follows that the subleases as currently drafted already allow the

first respondent to recover the costs which the applicants dispute.

22 22 86. If the Tribunal is against the Respondent on its contentions, the first respondent

contends that the sublease may be given full effect by: ▪ construing ‘[NAME]’ throughout the sublease as meaning ‘All the land and building registered under title number TGL248073’ (i.e. the [NAME] under the Headlease); ▪ construing “Property” throughout the sublease as meaning “All such land and such of the building as is registered under the Title Number” (i.e. TGL300662); ▪ construing ‘Common Parts’ as meaning “Common Parts of the Building and of the [NAME].’ [NAME]

87. The first respondent submitted the applicants appear to accept they

have the benefit of a [NAME]. The [NAME] has been described by the first

respondent as: ‘…the on-site presence liaising with contractors and making inspections of the whole [NAME] and we have negotiated an enhanced service for our residents so that they have a detailed service expectation.’ Courtyard 88. The Management Company have pleaded that the applicants have access to the

courtyard via the car park or V4 entrance.

Water supply 89. The applicants benefit from cleaning services which require water i.e. the

communal water supply is for the benefit of all the [NAME].

Lifts 90. These are part of the Maintained Property under the headlease which

includes lifts in the [NAME]. Accordingly, the applicants should pay a fair

proportion.

Pest control/litter picking 91. The Applicants clearly derive a benefit from Pest Control and litter picking

outside of [NAME].

23 The Tribunal’s Jurisdiction for 2018-2020 92. The years challenged are years ending: (1) 2018 – actual (2) 2019- actual; (3)

2020- actual; (4) 2021- estimated; (5) 2022- estimated; (6) 2023- estimated.

In respect of the last 3 years, the only issue for the Tribunal is whether the

sums estimated were reasonable: s.19(2) of the Landlord and Tenant Act 1985. 93. In respect of the first 3 years, the Respondent contends that the Tribunal has

no jurisdiction to determine the charges, because the applicants

(alternatively, all bar [NAME] [NAME] and [NAME]) have agreed or

admitted those charges. Although the jurisdiction of the Tribunal is very

broad, a statutory limitation is imposed on the power for it to make

determinations by section 27(4) of the Act. This provides that no application

under section 27A(1) or (3) may be made in respect of a matter which has

been agreed or admitted by the tenant. 94. It is accepted that the FTT has jurisdiction ‘whether or not payment has been

made’ (s.27A(2)) and also that section 27A(5) provides that tenant is not to be

taken to have agreed or admitted any matter by reason only of having made any

payment. However, the section was considered in [NAME] v [NAME] BC

[2015] UKUT 0117 (LC) where HHJ Gerald said: ‘Looking at the reasoning behind this provision, no doubt the reason why the making of a single payment on its own, or without more, would never suffice is that such will often be insufficiently clear but also, in the peculiar area of landlord and tenant, it is common enough for tenants to pay (even expressly disputed) service charges so as to avoid the risk of forfeiture and preserve their [RESPONDENT] and the value of their lease. But the reason why a series of unqualified payments may, depending on the circumstances, suffice is because the natural implication or inference from a series of unqualified payments of demanded service charges is that the tenant agrees or admits that which is being demanded. Putting it another way, it would offend common sense for a tenant who without qualification or protest has been paying a series of demanded service charges over a period of time to be able to turn around and deny that he has ever agreed or admitted to that which he has previously paid without qualification or protest.’ 95. Mr [NAME] also invited the tribunal to see also [COMPANY] v

Leitner [2018] UKUT 230 (LC); [2019] H.L.R. 10, which applied [NAME]. The [NAME]

case has recently been considered in the case of [NAME] v [NAME] E

RTM Company Limited [2024] UKUT 81(LC), which held that the effect of section

27A(5) is that, while a single payment can never amount to an agreement

within section 27A(4) ([NAME] followed), the word ‘only’ did not mean that s.27A(5)

applied only to a single payment ([NAME] not followed). The point of section 27A(4) was

that payment alone did not convey enough information to infer agreement, and it all

depended on the circumstances. However, there is nothing in [NAME] which says t

that a single payment plus other factors cannot amount to agreement. It is simply that

payment alone does not convey enough information to enable the inference of

agreement. It was noted by Judge Cooke in UT in [NAME]:

24 24 ‘… in circumstances where the tenant delayed before challenging the charge or charges and had the information during that time to raise a challenge, then the payments in those circumstances may indicate agreement.’ 96. Mr [NAME] submitted that it would offend common sense for the applicants now to be

able to deny these charges, many of whom have made without any protest until this

application. The tribunal’s decisions and reasons Whether the applicants’ sub-leases with the first respondent permit the first respondent to recover sums as service charges which it has paid as a tenant to its superior landlord in respect of the [NAME] 97. The tribunal finds the applicants’ sub-leases do not permit the first

respondent to recover as service charges, the sums it has paid to the

Management Company in respect of the [NAME] to which the applicants

have no access or cannot enjoy.

98. The tribunal finds that the Particulars of Sale (as exhibited in the witness

statement dated 3 November 2024 of the [NAME] of Flat 184 in [NAME])

stated the [NAME] refers to ‘[NAME] costs’ as part of the service charges i.e. [NAME] costs. The sales particulars made it clear that no [NAME] service was

provided, no access was allowed to communal gardens and no gym was

provided, although all of these were on site and available to non-social housing

[NAME].

99. The tribunal finds that the parties’ intention on entering the shared ownership

lease was to maximise their affordability by limiting the services provided and

the level of service charges. The tribunal finds this intention was reflected in

the shared ownership leases and the reference to the ‘[NAME]’ as [NAME].

This intention was also reflected in the demands for service charges by the first

respondent from the [NAME], which until 2012 did not

include the costs the first respondent had contracted to pay under the head lease

towards the upkeep of the [NAME].

100. The parties’ accepted that [NAME] had been poorly drafted in that the

obligations to pay service charges did not mirror those contained in the

headlease and required the first respondent to contribute towards certain

costs of the ‘[NAME]’ known as the [NAME] in the headlease and outside of

the ‘[NAME]’ known in [NAME] as [NAME].

101. The tribunal accepts the arguments put forward by the applicants that the sub-

leases do not as a matter of construction be read so as to define ‘[NAME]’ as the

‘[NAME].’ The tribunal finds that [NAME] do not satisfy the two

conditions are satisfied when an exception is made:

(i) there is a clear mistake in the parties’ use of language and

(ii) it is equally clear what correction ought to be made

25

Arnold v Britton [2015] UKSC 36; [2015] A.C. 1619.

102. The tribunal finds the leases do make sense and are not an obvious nonsense,

particularly where the first respondent is seeking recovery of sums for non-

essential services that the leases did not intend to provide to the applicants and

for which the applicants receive no direct or indirect benefit. The tribunal does

not accept Mr [NAME] argument that a water feature and a well-kept garden and

pathways adds more than minimally to the value of the applicants’ flats.

103. The tribunal accepts the applicants’ submissions that in circumstances, where

the first respondent’s title and [NAME] in land was limited to [NAME] and it has

very limited rights over the [NAME] it does not follow that the wrong

title number was obviously inserted into the definition of [NAME]. It is more

likely (and at least possible) that the person drafting the lease intended to limit

the definition of [NAME] to land that was actually owned by the first

respondent.

104. The tribunal also accepts Mr [RESPONDENT] submissions and finds it is more

likely than not, the draftsman was aware that TGL 300662 was limited to

the [NAME] V 1 , w h i c h is evidenced by the fact that it was referred to on the

same page, when defining the extent of the first respondent’s title and in the

Land Registry prescribed clauses. Moreover, the Land Registry prescribed

clauses did not note any other title and is evidence that the draftsman did not

have any other title in mind.

105. The tribunal also had regard to the first respondent’s submissions in

respect of [NAME] often being required to contribute to services for which

they receive no (apparent) benefit. The tribunal finds that the wording of [NAME] requires them only to contribute to the costs of repairing and

maintaining [NAME] and contributing to the servicers that are provided to it.

The tribunal finds the wording of [NAME] do not require the applicants to

contribute to the costs of the [NAME], which the first respondent has, in

its headlease contracted to pay. In this instance, the tribunal finds that as the

first respondent did not demand service charges in respect of the [NAME]

costs from the sub-[NAME] for several years and it had alternative sources

of funds from which it was able to pay these charges as no argument was raised

by the first respondent that it had fallen into arrears.

What does the headlease actually demise?

106. The tribunal finds the headlease demises to the first respondent: [redacted]

(a) The 38 self-contained [NAME] (not including the balconies/terraces). (b) The internal halls and stairwells on the ground and each upper floor. (c) The stairwell in the basement.

26 26 107. The tribunal finds the first respondent is also provided with certain

rights of access over part of the [NAME] in order to carry out its

obligations for the repair and maintenance of the parts demised as identified

above. What costs does the sub-lease permit the first respondent to recover from the applicants?

108. The tribunal finds the applicants’ sub-lease permits the first respondent to

recover from the applicants the costs of repairing and maintaining [NAME]

and the costs of providing services to [NAME] as well as the cost of maintaining

the balconies/terraces enjoyed by the apartments in [NAME].

109. The tribunal finds the applicants are not required under the terms of [NAME] to contribute to: the cost of the [NAME], the provision of

communal water and electricity, the cleaning of common areas, litter

picking and sweeping, the emergency lift line, the provision of the

corridor heat removal system, the provision of the PV meter hire, pest

control, professional fees, management fees and directors and officers

insurance or other costs that relate solely to the [NAME].

110. The tribunal rejects the applicants’ arguments that it would be ‘morally

wrong’ to require them to contribute towards costs of the [NAME] to

which they had no access. The tribunal finds it is incumbent on the

[NAME] and their legal advisers to ensure that the terms of a lease

accurately reflects their understanding of what they are contractually

required to contribute, even if they receive no benefit. Therefore, the tribunal

would have determined the applicants were required to contribute to the costs

of the [NAME] if it wording/covenants of sub-leases required the

applicants do so.

Are the applicants permitted to challenge the recovery of the

services in respect of the [NAME] and or [NAME]?

111. The tribunal also finds that the following applicants have while paying the

demands, expressly challenged their obligation to pay service charges for the

[NAME] from August 2018 as per the email dated 21 August 2018 from

[NAME] on behalf of a number of applicants, namely.

[NAME] [NAME]

[NAME] [NAME]

[NAME]

27

[NAME] & [NAME]

112. The tribunal determines that all of the applicants have unequivocally

demonstrated their opposition to the service charges from January 2022 to

date and are found not to have accepted service charges from that date. The

tribunal finds the respondent’s decision to provide limited access/use of

[NAME] services does not require the applicants to contribute to them under

the terms of [NAME] and have been unreasonably incurred. 113. The tribunal finds the applicants are required to pay a ‘fair proportion’ to the

maintenance of the lift service which the first respondent can

determine. 114. The tribunal finds the management fees charge to the applicants are in

excess of those charged to Blocks V2 to V7 although the services and

amenities provided under [NAME] are considerably less. In the absence of

an alternative sum being suggested by the applicants for this service, the

tribunal determines the management fees should be reduced appropriately

for all of the years in dispute to reflect the limited services provided. 115. The tribunal finds the applicants are required to pay for the costs incurred in

respect of the gullies, drains, balconies and terraces in so far as the sub-

lease requires them to contribute to these costs. The tribunal finds the evidence

relied upon by the applicants in their challenges to the cost or standard of

these works were not sufficiently supported by documentary or oral evidence

or to contradict the first respondent’s evidence of works having been carried out

in its demands/statements of accounts. Application under s.20C of the Landlord and Tenant Act 1985 and para 5A of Schedule 11 of the Commonhold and Leasehold Reform Act 2002

116. The applicants included a claim in the application seeking a direction that

none of the respondent’s fees, costs or charges should be added to services

charges or charged as administration fees. Having regard to the tribunal’s

decision as set out above, the tribunal considers it reasonable and

appropriate to make the orders sought under s. 20 of the 1985 Act and

para 5A of Schedule 11 of the 2002 so that none of the first respondent’s costs

are added to the service charges or otherwise sought from the applicants as

administration charges

Name: Judge Tagliavini

Date: 7 July 2025

28 28

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).