First-tier Tribunal Rules on Lift Maintenance and Service Charges

OUTCOME: Allowed

© CROWN COPYRIGHT 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BG/LSC/2018/0320 Properties : 55-[ADDRESS], 55-[ADDRESS] & 45-52 [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] [COUNSEL] (Solicitor), and [NAME] [COUNSEL] of [COMPANY] agents Respondents : [redacted] [COMPANY] :

None as such. Respondents present at the hearing were: [NAME] & Mrs [NAME] 51 [NAME] [NAME] [NAME] 50 [NAME] [RESPONDENT] [ADDRESS] of [NAME] :

S27A Landlord and Tenant Act 1985 – determination of service charges payable Tribunal Members : Judge [NAME] [NAME] Date and venue of Hearing : 28 [ADDRESS] [POSTCODE] Date of Decision : 20 March 2019

DECISION

2 The issues before the tribunal and its decisions 1. The issues as set out in the detailed and helpful directions of Judge L

[NAME] dated 20 September 2018 [54] were: • Whether works are required to all 3 lifts, and if so, whether they should be repaired, replaced or decommissioned; • Whether the costs are reasonable in amount; • Whether the costs are recoverable under the terms of the leases; • Whether an order under s20C Landlord and Tenant Act 1985 (the Act) should be made; and • Whether an order for reimbursement of [NAME]/hearing fees should be made

2. In the event (for reasons which shall be made shortly) the decisions that

the tribunal are able to make are: • The terms of the leases impose obligations on the Management Company to maintain, repair, decorate and renew the Common Parts (as defined) which includes the [NAME] in each of the subject blocks; • The terms of the leases impose obligations on [NAME] to contribute to the costs reasonably and properly incurred by the Management Company in complying with its obligation to maintain, repair and renew the [NAME] in their block; • The Management Company is entitled to include a reasonable sum in the annual budget for each block to be allocated to a reserve fund to be used to defray the costs of maintenance, repair and renewal of the [NAME]; • The terms of the leases do not empower the Management Company to decommission the lifts, save with the express and formal agreement of all lessees in the block concerned; • An order shall not be made under s20C in respect of any costs which the applicant might have incurred or incur in connection with these proceedings; and • An order shall not be made requiring any party to reimburse any other party the amount of any fee paid by the other party to the tribunal in connection with these proceedings.

3. The tribunal was not able to make a determination on the reasonableness of costs that might be incurred because the amount of those costs have not yet been ascertained. The Management Company has yet to finalise the nature and scope of works required to each of the lifts and the scope of any consequential works necessary to comply with current statutory provisions and established good practice and the Management Company has yet to undertake a full s20 consultation exercise in respect of the proposed works.

NB Later reference in this Decision to a number in square brackets ([ ]) is a reference to the page number of the hearing file provided to us for use at the hearing.

Procedural background

3 4. The applicant made an [NAME] pursuant to s27A Landlord and

Tenant Act 1985 (the Act). The [NAME] is dated 22 August 2018.

The [NAME] concerned works proposed to be carried to the lifts in

each of the subject blocks.

The respondents are the long lessees of flats within each of the blocks.

5. A case management conference was held on 20 September 2018. The

issues were clarified and identified as set out in paragraph 1 above.

Directions were given [57] for the service of statements of case and for

the preparation of a bundle of documents for use at the hearing.

That bundle runs to 368 pages. Some additional representations were

served late by [NAME] [NAME] [NAME], [NAME] of [NAME] which we

have page numbered [192(a) – (b)].

In broad terms the contents of the bundle comprise:

1. [NAME] form, directions and [NAME] [NAME] reports [1-103] 2. [NAME] responses (14)

[104-192(b)] 3. Applicant’s submissions

[193-199] 4. Lessees’ replies (2)

[200 - 209] 5. Applicant’s witness statements

[210 - 273] 6. Lessees’ witness statements

[274 – 354] 7. S20 information

[355 – 368]

6. The hearing took place on 28 February 2019. The applicant was

represented by [NAME] [COUNSEL] [NAME] an in-house solicitor with the

managing agents, LRM. [NAME] [COUNSEL] was assisted by [NAME] [NAME] [NAME], an [NAME] Manager with LRM.

The respondents were not formally represented. Those respondents

who attended the hearing were:

[NAME] & Mrs [NAME] 51 [NAME] [NAME] [NAME] 50 [NAME] [NAME] [ADDRESS] of those respondents had a different take on the way forward and

each of them made submissions in support of their respective positions.

In the event it became clear that the first task was to construe the leases

in order to be clear on the contractual obligations of the Management

Company with regards to the lifts.

The development and the leases 7. The development was carried out in the mid to late 1980s and

comprises 254 residential units being a mix of houses and flats in two,

three and four storey blocks.

4

The [NAME] concerns the three four storey blocks of flats, which are

the only blocks on [NAME] which have a [NAME] service.

Each of the three subject blocks are of the same design and comprise 8

flats – 2 on each floor.

8. We were told the flat leases were in common form. Some samples were

included in the bundle:

[ADDRESS]

[14-50]

[ADDRESS]

[131- 165]

[ADDRESS] (part) [178-186]

The leases were granted for terms of 999 years from 1 January 1984 at a

ground rent of £24 pa.

There are 4 parties to the lease:

[NAME]:

[COMPANY]

The Builder:

[COMPANY]

The Management Company: Clippers Quay (Millwall)

[APPELLANT] (the

applicant)

[NAME]:

[NAME]

The scheme was that each [NAME] was to become a member of the

Management Company and that in time the freehold interest would be

transferred to the Management Company. That duly occurred and on

26 January 1990 the Management Company was registered at HM

Land Registry as the proprietor of the freehold interest – title number

NGL491906.

Thus the applicant wears two hats –

[NAME]; and

The Management Company.

There are no adverse legal implications of that position.

The Management Company is a company limited by guarantee and it

does not have a share capital. The objects for which the Management

Company was incorporated are set out on [194].

9. As regards the service charge regime the leases provide for payment of:

9.1 An [NAME] - 1/254th

9.2 A Block Charge – 1/8th

The service charge regime for [NAME] is set out in The Fourth

Schedule Part 1.

5

The service charge regime for the Block Charge is set out in The Fourth

Schedule Part 2.

Material provisions of the sample lease for [ADDRESS] are set out in

the Appendix to this decision – pp 13-18.

The nub of the issue 10. The nub of the issue at the heart of this [NAME] concerns the [NAME] in

each of the three subject blocks.

The [NAME] at [ADDRESS] is still working but it is getting increasingly

difficult to procure spare parts as required.

The lifts in [ADDRESS] and [ADDRESS] ceased safe working order

some two years ago and are presently inoperative.

11. The Management Company is of the view that it has a duty under the

leases to repair, maintain and renew the lifts; that all three lifts

have reached the end of their useful life and should now be replaced

with new lifts, but utilising as much of the [NAME] shaft, [NAME] machine room,

well and pit and other structure as is economic and that the costs

incurred on the project are recoverable from the lessees of each block

through the service charge.

12. The Management Company says that such replacement of the lifts is

supported by a [NAME] dated 6 September 2016

which it procured from [COMPANY] a firm of [NAME] and

Escalator Consultants. The full report is at [50-70].

We need not go into the detail. Three recommendations with budget

costs were put forward:

Option 1 Minimal H&S works and provision of equipment.

Budget cost £15,000 + VAT per [NAME] 2 Modernisation

Budget cost £50,000 + VAT per [NAME] + associated H&S

works

Option 3 Replacement

Budget cost £75,000 + VAT + associated building works

13. A [NAME] works specification was prepared and put out to tender by [NAME].

The tender report dated 13 April 2018 is at [71-79]. Of the six

contractors invited to tender only two submitted tenders:

Specified Works Full [NAME] Service £64,763

£83,858

6

[NAME]

£76,141

£75,760

Plus in both cases VAT and associated building works to configure the

lobbies to comply with current Building Regulations and associated

statutory requirements concerning disabled access.

14. The lessees at [ADDRESS] commissioned a report from [NAME], a firm of [NAME], Escalator and Cradle Access System

Consultants . It is dated 16 October 2018 [80-103]. This [NAME] is the one

remaining [NAME] still in operation. The conclusions and

recommendations are in section 7. It is noted the [NAME] was made and

installed in 1985/6 by [NAME] and the original anticipated economic life

expectancy was approximately 20 years. The [NAME] has actually exceeded a

30 year service life. The level of dilapidation evident and some

degree of obsolescence with the [NAME] control panel, hydraulic aggregate

and/or door operator form the basis of concerns about obtaining

suitable spares should those components fail in the near future. It was

considered the [NAME]’s performance and efficient and operational

reliability will only deteriorate in the foreseeable future and an upgrade

and/or modernisation would be evident within the next three years or

sooner as conditions warrant.

Recommended modernisation works were budgeted at £70,000 and it

stated replacement costs might exceed £90,000 to comply with current

Code Standards. A range of options were considered and summarised.

At paragraphs 7.4 and 7.5 the report highlighted the current Code

Standard – the European Code Standard BSEN81-80: 2003 is being

updated by the British Standards Institute (BSI) to incorporate certain

improvements introduced in 2017 relative to new lifts. A 2018 draft

version is in circulation but has yet to be ratified.

Whenever the works are carried out they will be required to comply

with the version of the Code Standard then current and this may have

implications on the scope of the works required to be carried out and

hence the cost of those works.

15. In October 2017 the Management Company issued a s20 Stage 1 Notice

of Intention to Carry Out Works [355]. The proposed works were

described as “Full refurbishment of the lifts at the following

addresses:” The three subject blocks were then identified.

That notice promoted a wide range of observations - from full support

on the one hand down to a proposal that the lifts be decommissioned

and removed completely. That in turn led to informal consultations on

how the Management Company might go forward.

16. In the event the [NAME] before us was issued and the matters for

determination were identified as set out in paragraph 1 above.

7 The critical issues 17. The critical issues are the correct interpretation of the material

provisions of the leases as regards the lifts and whether the proposed

works fall within the expression:

“ maintain repair decorate and renew … the Common Parts … and

other parts of the Block so enjoyed or used by [NAME] in common

as aforesaid”

18. The approach to construction or interpretation of contracts or written

instruments is now clear following several recent decisions of the

Supreme Court including:

Rainy Sky SA v Kookmin Bank [2011] UKSC 50

Arnold v Britton [2015] UKSC 36;

[NAME] v [COMPANY] [COMPANY] [2017] UKSC 24

It is not appropriate here to distil or set out that learning in detail.

Suffice, that in broad terms the task of the court is to ascertain the

objective meaning of the language or words used in context and having

regard to the contract as a whole. That involves ascertaining what a

reasonable person would have understood the parties to have meant by

the words they used. That reasonable person is one assumed to have all

the background knowledge which would reasonably have been available

to the parties in the situation they were in at the time of the grant of the

leases.

The words used in the lease must be given their ordinary or natural

meaning in context, the parties’ relationship and all relevant facts

surrounding the transaction so far as known to the parties. It is to be

assumed the parties intended to give the words they chose their natural

meaning.

Only in the event of ambiguity in the words used might the court give

weight to the rival possible constructions and have some regard to a

construction which is more consistent with commercial or business

common sense. Where there is no ambiguity the court must give effect

to the words used, even if that result is harsh to one of the parties.

It was also clarified in Arnold v Britton that residential leases fall to be

construed in exactly the same way as any other contract or written

instrument and there are no special rules.

19. The Management Company submitted that the [NAME] fell within the

definition of Common Parts which, in effect is the whole of the block

less the extent of that part of it demised under a Flat Lease, and thus

the Management Company was obliged to maintain, repair and renew

the [NAME]. That submission was supported by [NAME] & Mrs [NAME]. It was

a position also supported by a number of lessees who had made

written submissions.

8

20. [NAME] [NAME] submitted that there was no express mention of a [NAME] in the

lease. [NAME] [NAME] suggested that if the lifts were to be repaired or

renewed the cost should be an [NAME] cost and not a Block cost on the

basis that the [NAME] was part and parcel of common access to the front

door of the flat.

21. Ms [NAME] also submitted that the [NAME] was not part of the Common Parts

as defined and that the Management Company does not have an

obligation to maintain, repair or renew the [NAME], but if it did, it should do

so at its own cost and not recover the costs incurred through the service

charge. Ms [NAME] was not able to explain from where the Management

Company would find the money to do so given its particular financial

circumstances.

Discussion 22. We prefer the submissions made by the Management Company. We

find the wording of the lease is quite clear and unambiguous. The

Common Parts comprise the whole of the Block except the flats

demised within the Block. What is left after the demised flats are taken

out falls within the definition of Common Parts. Further the [NAME] may be

enjoyed or used by a [NAME] in common with the owners and lessees of

the other flats in the Block

It is true that there is no express reference to lifts in clause 11.2 and

there is express reference in clause 11.2.1.1 to ‘roof foundations gutter

and rainwater pipes’, but equally there is no express reference to the

main door, hallways, lobbies, and stairways and all of these features are

classically common parts in a block of flats.

It is equally true that paragraphs 2 and 3 of Part 2 of the Fourth

Schedule make express references to television aerials and entry-

phone systems and that there is no reference to a [NAME] but we do not

consider that such omission removes the [NAME] from being within the

definition of Common Parts or a part of the Block enjoyed in common

with the owners and lessees of other flats.

23. [NAME] comprises a range of residential units being houses and flats

in blocks in several different styles and heights. The original [NAME]

appears to have adopted a generic form of lease to be applied across the

whole of [NAME] which requires minimal input or alteration limited

to the name of [NAME] on the front coversheet and a few specific

details in the Seventh Schedule. This is a common practice designed to

keep the conveyancing work on grant of leases across an [NAME] to a

minimum.

As only three of the 16 blocks of flats has a [NAME] we can understand why

the draftsman adopted the practice that he did, as regards he definition

of Common Parts and enjoyment of parts of the Block enjoyed in

common so as to avoid the need to make express mention of a [NAME].

9 24. We are reinforced in our conclusion for two reasons. We infer the

leases were granted pursuant to agreements for lease which will have

included a specification of the flat and the block and provision for the

issue of a certificate of practical completion. So, even if a flat was sold

off-plan the original [NAME] would have been aware that the subject

block included a [NAME].

25. At the time of grant of the lease the [NAME] would have been installed and

operational. For those flats on or above the first floor level the [NAME]

would have been a means of access to the flat within the meaning of the

right ‘to pass and repass over and along the Common Parts’ as granted

in paragraph 1 of Part 2 to the Second Schedule of the lease. Further

the right to use the [NAME] would have been deemed granted by virtue of

s62 Law of Property Act.

26. We have no doubt that if on the day of grant an informed bystander

stood in the ground floor lobby by the [NAME] door, holding a copy of the

lease proposed to be granted and posed the question:

26.1 Who is responsible to maintain and repair the [NAME]? The answer

given by the parties would have been ‘the Management

Company’; and

26.2 [NAME] have to contribute 1/8th of the costs incurred?

The answer given by the parties would have been ‘Yes’.

What does ‘maintain repair decorate and renew’ mean? 27. Ms [NAME] drew attention to the expression ‘full refurbishment of the

lifts’ adopted by the Management Company in its s20 Notice of

Intention dated 10 October 2017, and the use of the expression ‘replace

or replacement’ adopted subsequently and submitted that neither of

those were mentioned in clause 11.2.1 of the lease. In her submissions

Ms [NAME] was very clear that ‘renew’ and ‘replace’ were quite different

concepts.

28. Ms [NAME] cited and relied upon the Court of Appeal decisions in

[NAME] v Taff Ely Borough Council [1986] QB 809 and [NAME] v

London Borough of Hounslow [2017] EWCA Civ 45 on the nature and

extent of the obligation to repair.

29. In our judgment when an item of plant gets to the end of its useful life

and patch repairs are no longer viable for a number of reasons,

including the inability to procure spare parts, the item is repaired by

replacing it with a modern equivalent. We find the expression ‘renew’

and ‘replace’ mean one and the same. We are supported in that

conclusion by the comments of [NAME] J in [COMPANY] v

[NAME] the Chemists [1996] 2 EGLR 60 when he said: “Clearly it is a

matter for experience and judgement when the time has come to

renew a roof. The cost of replacement must be balanced against the

likely cost of increasing patch repairs.”

10

There are numerous other authorities that support the proposition that

the obligation to effect a repair can embrace renewal or the

replacement of plant when it has come to the end of its useful life and

patch repairs are judged to be no longer economic or practical.

The obligation to ‘maintain’ plant may also embrace the replacement of

it. See for example [COMPANY] v [COMPANY] [1989] NSMLR 33, a case concerning a

hotel in a high rise block where the landlord had the obligation of ‘…

maintenance of lifts…’ and where Young J held:

“[T]he word ‘maintain’ carries with it the connotation that the

landlord is obliged not only to attend to cases where there is a

malfunction of the lifts, but also to take such preventative measures as

should ensure that the lifts should not malfunction and that if it comes

about that despite these efforts the lifts malfunction to such an extent,

then to replace the lifts with lifts that do function satisfactorily.”

In [NAME] Management [COMPANY] v Hardy [2008] 3 EGLR 125 at

62, [NAME] held:

“… a landlord’s covenant to keep in proper working order’ or to

‘maintain’ is wider in scope than a covenant to ‘repair’ although even

this will depend upon the true construction of the covenant in its

context. This point is particularly relevant to plant, machinery,

equipment and installations. ‘Repair’ involves remedying a state of

disrepair that has arisen, and the obligation does not arise until it has.

‘Keep in proper working order’, and possibly merely ‘maintain’, may

well require proactive preventative maintenance work, or carrying

out adjustments or general servicing before any actual fault develops

or a want of repair exists.”

30. On the evidence before us two of the lifts are not in working order.

Something not in working order is in disrepair. The Management

Company is obliged to carry out such reasonable works as are necessary

to put the lifts into repair and working order.

The third [NAME] is in working order. But on the evidence of the [NAME]

expert procured by some of the lessees, the [NAME] it has passed the end of

its anticipated working life and has got to a point where parts or

components are obsolete and it is difficult to procure spares or

replacements.

Recommendations have been made as to alternative courses of action

that might be undertaken by the Management Company. It is a matter

for the Management Company to determine which of those courses it

wishes to pursue. Where there are several options open to a landlord

and each of them are within the range of what is reasonable, it is for the

landlord to decide which option it wishes to pursue and the lessees

have the obligation to contribute to the reasonable costs incurred.

11

The way forward 31. We were told that the Management Company has not yet formally

decided what scope of works or specification it proposes to adopt for

each of the three lifts in question. It is apparently awaiting the

decision of this tribunal as to the proper interpretation of the lease.

[NAME] [NAME] explained that once it has the decision the directors will make

decisions of the extent and scope of works proposed and will start

afresh a formal s20 consultation process in respect of those works.

32. In these circumstances this tribunal is not in a position to make formal

determinations on what a reasonable scope of works might be or what a

reasonable cost of those works might be.

General observations 33. Before concluding there are some general observations that it may be

helpful to the parties for us to make.

34. It appears that the notion of decommissioning came about and that

some lessees may have thought that was a course they might vote upon.

That is not the case. The Management Company has the obligation to

maintain repair and renew the lifts. That is an obligation that must be

carried out, save in exceptional circumstances. Perhaps that might

come about if the landlord, the Management Company, all eight lessees

(and their mortgage companies) were to agree enter into a deed to vary

the leases to delete the obligation, but not otherwise.

35. Some of the written representations suggested the current lessees did

not tend to use the [NAME] and were content to use the stairway. That was a

snapshot in time. Those same lessees might have a different view in

years to come. The lease are long term contracts – 999 years and a long

term view is appropriate.

36. Some lessees, including [NAME] [NAME] of [NAME], suggested

that the [NAME] favours the second and third floor lessees which was unfair

to the ground floor lessees and there should be a graduated level of

contributions to the costs of the [NAME]. That is not what the leases provide.

It must have been clear to each original [NAME] and each subsequent

assignee before purchasing their properties what the level of

contributions was. Where a person chooses to buy a property in a

community of eight units and agrees to contribute 1/8th of certain

communal expenditure, that person cannot reasonably argue during

the course of the term that their share should go down with the

consequence that the share of another person within that community

must go up. Economic factors that might have changed since the grant

of the leases and the fact that a [NAME] in a small block might be considered

a luxury item are not factors that bear on the obligations of the parties

as set out in the lease. Further, a person who struggles in using stairs

might not agree that a [NAME] is a luxury item.

12 37. [NAME] [NAME] raised the question whether some of the costs to be incurred

might be the subject of a claim on an engineering insurance policy

taken out on the lifts. [NAME] [NAME] said that no claim was possible. [NAME]

[NAME] was sceptical. The issue was not formally before us and neither

was the policy. [NAME] kindly agreed to provide copies of the material

documents to [NAME] [NAME].

38. Evidently, an unfortunate episode occurred with a previous managing

agent concerning funds held in a reserve fund. For this reason the

present managing agents have been reluctant to allocate funds to

reserves until it has established the confidence of the lessees.

The terms of the lease permit a limited amount to be held in a reserve

fund.

It is a matter for the Management Company to decide what the actual

scope of works will be and whether it wishes to defer the works while it

builds up the reserve fund. Some of the lessees have submitted

affordability issues about paying £10,000 or so in one service charge

year.

The only observation we would make is that if the works are delayed

too long it is inevitable that the ultimate cost will be greater than the

present day cost. Also, the indication by the lessees’ expert was that the

Code Standard might be changed and we infer that it is more likely than

not that any such changes will lead to an increase in costs.

39. On a similar vein [NAME] [NAME] said she was very wary of paying any

sums on account unless she knew exactly what works were proposed

and at what cost. That is an unrealistic position. The Management

Company might well have a specification of anticipated works and an

indicative costing of those works. It must then demand and receive

contributions from the lessees, within the confines of the service

charge regime in the lease. Some lessees may be unwilling or unable to

pay their contributions straightaway and enforcement steps may be

required. All of this will take time, perhaps quite a few months. In the

meantime there might necessarily be some tweaking of the

specification of works (especially if a new Code Standard is adopted)

and inevitably the indicative costings will become outdated so as to

require revision, most probably upwards.

Thus as with any major works project such as proposed here the exact

cost will not be known until the project has been completed and a final

account settled. The Management Company is entitled to take a broad

but reasonable view of the likely costs to be incurred and to demand on

account sums from lessees on that basis. Lessees’ have the obligation to

pay those demands.

For obvious reasons the Management Company is not able to place a

major contract until it is holding sufficient funds to defray the

anticipated costs likely to be incurred.

13

40. In response to the directions a number of lessees submitted written

representations. They covered a range of issues, some material and

some not. We have considered all of them even if they are not expressly

mentioned in this decision.

Whilst the question of the proper interpretation of the lease does not

come down to a vote on what the current lessees might prefer to do

about the [NAME] in their block, the majority of the representations was to

the effect that the [NAME] must be put and kept in proper working order.

Judge John Hewitt

20 March 2019

The Appendix Material Provisions of the lease

Definitions

“The Block” means the part of [NAME] (if any) edged blue on

the Lease Plan including the whole of the walls or fences shown marked

with an inward ‘T’ (if any) of which the Flat forms part and being one of

the Flat Blocks

“The Buildings” means the buildings which are in the course of

being constructed or have recently been constructed on [NAME] and

form part of Clippers Quay

“Common Accesses” means the parts of [NAME] (other than

the Roads and the Walkway) laid out or intended to be to be laid out as

a means of access …. Between the publicly maintained accesses…

and/or the Roads and/or the Walkway and any parts of [NAME] …

“The Common Parts” means the parts of the Block not intended to

be demised by the Flat Leases

“[NAME]” means the freehold land within the site boundary

as shown on the Site Plan

“The Flat” means (where the Unit demised by this Lease

forms one of the Plots comprised in the Flat Blocks) the flat (forming

part of the Block) more particularly described in Part 1 of the Sixth

Schedule

“The Flat Blocks” means the blocks of flats comprising

respectively Plots … [16 blocks were then identified by reference to plot

numbers)

14

“The Flat Leases” means the Unit Leases of the individual flats

in the Block for the Term all containing covenants similar (mutatis

mutandis) to the terms of this Lease to the intent that the covenants on

the part of the Lessees in clause 6.2 9.1.2 and 9.2 hereof and the

stipulations contained in each Flat Lease in the Block shall be

enforceable by the other lessees so far as affected thereby

“The Roads” means the [ADDRESS] and the [ADDRESS]

“The Service Charge” means the cost to [NAME] of the items

referred to in the Fourth Schedule

“Service Installations” means the sewers channels drains pipes

watercourses mains wires cables pillars turrets amplifiers poles

soakaways ad any other apparatus for the supply of water electricity gas

or telephone television or radio services or the disposal of foul or

surface water

“The Unit” means the flat or house more particularly described in

Part 1 of the Sixth Schedule

“The Unit Leases” means the leases of all the units on [NAME] for

the Term all containing covenants similar … to the terms of this Lease

…

[NAME]’s covenants in respect of service charge/repairs etc

9.1 [NAME] hereby covenants with [NAME] and as a separate

covenant with the Management Company and with the owners and

lessees of the other units on he [NAME] and leased … that [NAME] will

at all times hereafter:

9.1.1 pay the Management Company by way of further or additional

rent the proportion of the Service Charge specified in Part 1 of the

Fourth Schedule

9.1.2 if the Unit hereby demised comprises a Flat pay to the

Management Company by way of further or additional rent (in addition

to the sum payable under clause 9.1.1) the proportion of the Service

Charge specified in Part 2 of the Fourth Schedule

(Sub-clauses 9.1.3 to 9.1.5 set out provisions for an annual budget,

estimated contributions payable on 1 January and 1 July in each year

for a final account of actual expenditure and a balancing debit or credit

as the case may be. These were not controversial and so we do not set

them out in full.)

Management Company’s covenants

11.1 The Management Company hereby covenants with [NAME] as

follows:

15

11.1.2 That the Management Company will … insure … the Communal

Areas the Common Accesses and the Private Roads …

11.1.3 That the Management Company will maintain the Communal

Areas Common Areas and the Private Roads … and all walls bounding

[NAME] …

11.1.4 That the Management Company will maintain repair and renew

all Service Installations within [NAME] so far as the same are not

maintained by the Service Authorities and do not form part of or serve

solely a Unit or a Flat Block

11.2 The Management Company further covenants with [NAME] if

the Unit hereby demised comprises the Flat as follows:

11.2.1 That the Management Company will maintain repair decorate

and renew:

11.2.1.1 the main structure and in particular (but without

prejudice to the generality of the foregoing) the roof foundations

gutters and rainwater pipes of the Block

11.2.1.2 the Service Installations in under and upon the

Block and enjoyed or used by [NAME] in common with the

owners and lessees of the other flats in the Block

11.2.1.3 the Common Parts and the Amenity Land and the

bin store forming part of the Block and other parts of the Block

so enjoyed or used by [NAME] in common as aforesaid

(In case it be of assistance to the parties we emphasise that it is

this provision that we find imposes the obligation on the

Management Company to maintain repair decorate and renew

the [NAME] in the Block)

11.2.4 That the Management Company will at all times …insure and

keep insured … the Block against loss or damage by fire storm aircraft

property-owners liability and such other risks (if any) as the

Management Company shall …think fit …

The First Schedule Part 2

Restrictions and obligations imposed only in respect of flats

in the Flat Blocks

2. Not to obstruct in any way any of the Common Parts or the

access to any other flat in the Block

The Second Schedule Part 2

16

Easements rights and privileges included only for the benefit

of flats in the Block

1. Full right and liberty for [NAME] and all persons authorised

by him (in common with all other persons entitled to the like right) at

all times by day and by night and for all purposes to go pass and repass

over and along the Common Parts

2.-3. …

PROVIDED that all the above easements rights and privileges are

subject to and conditional upon [NAME] contributing and paying as

provided in clause 9.1 of this Lease.

The Fourth Schedule

Part 1

Service Charge in respect of all Units (in respect of which [NAME]’s contribution is 1/254th part)

1. The expenses incurred in the running and administration of the

Management Company whether or not the Management Company be

also [NAME]

2. The expenses incurred by the Management Company in carrying

out its obligations under clauses 11.1.2 to 11.1.5 inclusive of this lease

5. All other expenses (if any) incurred by the Management

Company in and about the maintenance and proper and convenient

management and running of [NAME] …

Part 2

Service Charge in respect of flats in the Flat Block (in resect

of which [NAME]’s contribution is as specified in

paragraph 7 of the Seventh Schedule)

1. The expenses incurred by the Management Company in carrying out its obligations under clause 11.2 of this Lease

2. The cost of maintaining (including any rental) communal television aerials (where there are any) for the use of the Block

3. The cost of maintaining (including any rental) any entry-phone or other similar system (where there is one) for the use of the Block

4. Such sum (to be fixed Annually) as shall be estimated by he Management Company (whose decision shall be final) to provide a reserve fund for items of expenditure referred to in this Part of

17 this Schedule to be expected to be incurred at any time during the period of three years commencing with the date upon which the estimate is made

8. The said reserve fund shall be kept in a separate account … and

shall only be applied in accordance with the terms of this Part of

this Schedule

The Sixth Schedule

The premises demised by this Lease are those premises shown edged red on the Lease Plan being the Unit number shown in paragraph 3 of the Seventh Schedule comprising:

Houses with no flats above …

E Type houses with flats above …

E Type flats with houses below …

B Type flats above Common Accesses …

Flats in Flat Blocks 1.1 All the doors and windows thereof 1.2 The interior faces of the ceilings floors and main structural walls thereof 1.3 One half of any walls (not being structural walls) which divide the Flat from any adjoining flats or any common parts of the Block … 1.4 All cisterns tanks and Service Installations used solely for the purpose of the Flat 1.5 The part of the garden (if any) within the red edging 1.6 The whole of the walls or fences shown marked on the Lease Plan with an inward ‘T’ (if any)

2. There is excluded from the demise the main structural part of

the Block including the roof foundations and external parts

thereof

Carports …

Garages

…

The Seventh Schedule

18

1. The price is …

1.1 The sum payable by [NAME] to [NAME] is £… 1.2 The sum payable by [NAME] to the Builder is £…

2. …

3. The Unit is a Flat in a Flat Block on the … floor with a parking space and is Plot … Clippers Quay …

4. The postal address is: …

5. [NAME] is: …

6. …

7. [NAME]’s contribution for the purposes of Part 2 of the Fourth Schedule is 1/8th.

ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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].

3. 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.

4. 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.