First-tier Tribunal Rejects Service Charge Claim for Non-Dwelling Airspace

OUTCOME: Struck Out

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AM/LSC/2025/0947 Property : [ADDRESS] [POSTCODE] Applicant: [redacted] Respondent : [redacted] [NAME] : Section 27A Landlord and Tenant Act 1985 Tribunal member : Tribunal Judge I Mohabir Date of decision : 11 November 2025

DECISION

Background

1. On 8 June 2025, the Applicant made an [NAME] under Section 27A

Landlord and Tenant Act 1985 (as amended) (“the Act”) relating to service

charge demands totalling £8,615.01 for the years 2023 and 2024.

2. The Applicant is the leasehold proprietor of airspace above [ADDRESS], [POSTCODE], subject to the terms of a lease dated 19

May 2022 made between (1) [COMPANY] and (2) [APPELLANT]

(“the airspace lease”).

3. The Respondent is the freehold proprietor of [ADDRESS], [POSTCODE] (“the Premises”).

4. The [NAME] relates to service charges demanded by the Respondent to the

Applicant under the terms of the airspace lease.

5. The preliminary issue is whether the Tribunal has jurisdiction to determine

the [NAME]. It is the Respondent’s position that the airspace is not a

dwelling within the meaning of section 18 of the Act and, therefore, the Tribunal

does not have jurisdiction.

Procedural

6. Therefore, on 30 September 2025, the Tribunal held a case management

hearing and gave directions to determine the preliminary issue about

jurisdiction. In the directions order, Judge Hawkes noted that the Applicant

seeks declaratory relief when section 27A of the Act does not confer a power to

grant declaratory relief on the Tribunal. In addition, the Judge expressed the

preliminary view that the Tribunal has no jurisdiction to make a

determination under section 27A of the Act in respect of the asserted charges.

7. In compliance with the Tribunal’s directions, on 30 September 2025, the

Applicant filed a skeleton argument. On 3 October 2025, the Applicant filed

an updated skeleton argument which it confirmed superseded that filed on 30

September 2025. Subsequently, on 3 October 2025, the Applicant filed a

supplementary note to its skeleton argument.

8. On 22 October 2025, the Applicant filed a “rebuttal summary” in response to a

letter which had been sent by the Respondent to the Applicant on 21 October

2025. The Respondent contends that the letter was addressed to the Applicant

and was not intended to form submissions for the purposes of these

proceedings. In any event, the Applicant had not been given permission to file

and serve a rebuttal summary and, therefore, the Tribunal was satisfied it could

not rely on it.

Statutory Provisions

9. Section 18 of the Act dines the meaning of a service charge and provides:

“(1) In the following provisions of this Act “service charge” means an amount

payable by the tenant of a dwelling as part of or in addition to the rent-

(a)…

(b)…

10. The definition of “dwelling” is found in section 60 of the Act, which provides:

“In the Act-

…

“dwelling” means a building or part of a building occupied or intended to be

occupied as a separate dwelling…”.

11. Section 27A of the Act gives the Tribunal jurisdiction to make a determination

whether a service charge is payable.

The Lease 12. The airspace lease dated 19 May 2022 is a lease of the airspace which is

defined in clause 1.1.3 thereof as follows:

“The Airspace means the volume of airspace lying immediately above the

roof of the Building as is shown edged red on Plan 2 up to a height of 7

metres vertically from the outer edged and of the Building but excluding:

1.1.3.1 any part of the roof of the Building, and

1.1.3.2 any structural parts of the Building”.

13. The Lease also relates to “the Flat” as defined in the same at clause 1.1.10.1

which is:

“The Flat’ means all the flats in the Airspace to be constructed by the [NAME]

pursuant to the [Development] Agreement and following completion of the

construction of the Flat the provisions of Schedule 1 shall also apply”.

14. By clause 2.1 of the lease the Airspace was demised to the Applicant subject to

the Applicant yielding and paying by way of further rent the Service Charge

payable in accordance with Schedule 5.

Decision

15. The Tribunal’s determination took place on 11 November 2025 without an oral

hearing and was based solely on the written submissions filed by the parties.

16. What is clear that the airspace lease was granted to permit the Applicant to

develop the demised area by reference to the separate development agreement. It

is common ground that, at present, no such development had occurred.

17. In essence, the Applicant’s primary submission, is that the airspace falls within the

definition of section 60 of the Act because “it is intended to be occupied as a

separate swelling”.

18. The Tribunal did not accept the Applicant’s submission as being correct. Instead,

the Tribunal preferred the Respondent’s submission that neither the airspace nor the

Flat are occupied or intended to be occupied as a separate dwelling. The

airspace is a volume of airspace and the Flat means "all of the flats in the

Airspace to be constructed”. Therefore, section 18 of the Act 1985 does not

apply to the service charges in dispute meaning that the Applicant may not

bring an [NAME] pursuant to Section 27A.

19. The Tribunal was satisfied that the meaning of “dwelling” should be given its

ordinary meaning. That is, a physical construction that is “occupied as a

separate dwelling”1. Therefore, the airspace demised to the Applicant cannot

constitute a separate dwelling and the Applicant is not a tenant of a dwelling

entitled to bring an [NAME] pursuant to section 27A of the Act.

20. The Tribunal was also satisfied that the clauses relied on by the Applicant

which it says mirrors those of the existing residential underleases within the

remainder of the Premises are irrelevant because neither the terms of the

lease nor the form of the demands convert the lease to a lease of “dwelling” for

the purposes of section 18 of the Act.

21. The Tribunal was further satisfied that the authorities relied upon by the

Applicant are not authorities for the Tribunal having jurisdiction because

none of them provide any authority for any proposition that the lease of the

airspace amounts to a “separate dwelling”.

22. Accordingly, the Tribunal concluded:

(a) Section 27A of the Act does not confer on the First-tier Tribunal

the power to grant declaratory relief.

(b) Section 18 of the Act does not apply to the sums in dispute for the

reasons given above.

(c) Section 20B of the Act does not apply to non-residential premises.

(d) The Tribunal has no jurisdiction in relation to alleged estoppel.

23. The Tribunal, therefore, concluded that it had no jurisdiction to determine the

[NAME] and it is struck out under Rule 9(2)(a) of The Tribunal Procedure

(First-tier Tribunal) (Property Chamber) Rules 2013.

1 see: Q Studios (Stoke) [COMPANY] v [NAME] No.6 [COMPANY] [2020] UKUT 197 (LC) at [39]

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 [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] 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 [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).