Tenant Must Pay Lift Charges Under Lease Terms

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BE/LSC/2023/0412 Property : 12 [ADDRESS] [POSTCODE] Landlord/Applicant : [redacted] Respondents/ Tenants : London Borough of Southwark Type of [NAME] : [NAME] for a determination of payability of service charges – s.27A of the Landlord and Tenant Act 1985 Tribunal members : Judge Tagliavini Mrs A Flynn MA MRICS Date of hearing and venue : 8 [ADDRESS] [POSTCODE] Date of decision : 15 May 2024

DECISION

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The tribunal’s decision 1. The tribunal finds:

(i) The method of apportionment of the applicant’s service charges is reasonable and open to the respondent to adopt under the terms of the lease.

(ii) The applicant is liable to contribute to the lift charges under the terms of the lease. _____________________________________________________ The [NAME] 2. This is an [NAME] made by the tenant seeking the tribunal’s

determination of the payability of service charges in respect of the

subject property. Specifically, the applicant seeks a determination under

section 27A of the Landlord and Tenant Act 1985 as to whether past and

future service charges are payable for the service charge years 2017 to

2028. In particular, the applicant challenges the charges for lift repairs

and maintenance since the Respondent blocked off all access to the lift

for ground floor tenants behind a secure door accessible only with use

of a fob provided by the respondent landlord. Background 3. The subject premises comprise a 1 bedroom ground floor flat in a

purpose built block (‘the property’). 4. In the [NAME] form the applicant stated:

Approximately in 2001/2002 they changed the building by

adding a secure door and phone entry system to the building,

this meant ground floor tenants could longer access the lift as

this was behind the secure door, only tenants who live on the 1st

floor and above have access to the secure door, lift and dustbin

shoot(sic)

I have a ground floor flat with no lift access (please see

picture) and have tried several times to discuss the lift

cost with Southwark Council, however I have not succeeded.

I have been speaking to other residents who have explained

that they do not pay for the lift as they do not have access to the

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lift in their block, confirming they are in ground floor flats as

well. Southwark council are charging me for lift repairs and

therefore showing discrepancies on how they are charging the

residents of Kingswood Estate London

In accordance to my leasehold agreement, it is not appropriate

that they are charging me for the lift. 5. Ms [NAME] claimed a refund of service charges of £1972 paid for lift

repairs and maintenance costs. Ms [NAME] subsequently sought to

amend her [NAME] and sought to include:

…all service charges to me are fair and appropriate. Initially I had

requested judgement of the lift charges, but since then it

has been bought to my attention that Southwark council are

showing discrepancies on all charges within the block. In

comparison to service charges between 11 and 12 [NAME] house

it is evident that my charges are bigger - please see attached below

12 [NAME] house is a one bedroom ground floor 11 [NAME] house is

two bedroom ground floor So you would think my bills would be

smaller as it is a smaller property, given that leasehold flats

services charges are normally based on square foot/rooms (units)

I would like to request a refund of all unfair charges since 2003 if

not then 2006, it is clear that my charges are significantly higher

then 11 [NAME] house. I would like compensation due to financial

burden. I would also like to make a request that Southwark

council confirm that I was not charged for the entry phone system

before 2016 and if so - they refund this. 5. Consequently, the tribunal considered the issues to be determined were:

(i) The liability to pay service charges for lift repairs and

maintenance for the period 2018 to 2024.

(ii) Whether the percentage of service charges is reasonable

for the period 2018 to 2024. The hearing 6. At an oral hearing the applicant represented herself. The respondent

was represented by Mr [RESPONDENT]. The parties relied upon a

digital bundle comprising 212 pages. The tribunal heard oral

evidence from the applicant. The respondent relied upon a Statement

in Response dated 18 March 2024, in which it set out its reasons for

objecting to the [NAME] and referred to clauses of the lease on

which it relied. The relevant parts of the Response stated:

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The Lease dated 11th February 2013 (“the Lease”) which

is made between the Respondent and Applicant is clear, the lift,

which is provided and maintained by the Respondent, is

chargeable to the Applicant via the service charge mechanism.

the applicable clauses below which clearly states the lift is

chargeable: Clause 2 (3) (a) - “the Tenant [“Applicant”] hereby

covenants with the Landlord [“Respondent”]… To pay the Service

Charge contributions set out in the Third Schedule hereto at the

times and in the manner there set out”.

Third Schedule –

Paragraph 2 (1) - “Before the commencement of each year

(except the year in which this lease is granted) the Landlord shall

make a reasonable estimate of the amount which will be payable

by the Tenant by way of Service Charge (as hereinafter

defined) in that year and shall notify the Tenant of that estimate”

Paragraph 6 (1) - “The Service Charge payable by the Tenant shall

be a fair proportion of the costs and expenses set out in paragraph

7 of this Schedule incurred in the year”

Paragraph 6 (2) - The Landlord may adopt any reasonable

method of ascertaining the said proportion and may adopt

different methods in relation to different items of costs and

expenses”

Paragraph 7 (2) - “The said costs and expenses are all costs and

expenses of or incidental to… Providing the Services hereinbefore

defined” the Services – “means the services provided by the

Landlord to or in respect of the Property and other flats and

premises in the Building and on the Estate and more particularly

set out hereunder (where and when applicable) (i) Security Services (ii) Electricity (iii) Estate Lighting (iv) Door Entry (v) Concierge (including CCTV) (vi) Lift (vii) TV Aerial (viii) Unitemised Repairs (ix) Grounds Maintenance (x) Care and Upkeep (xi) Heating (xii) Water Tanks

5 7. The respondent also asserted in its Response that:

The service charges for 2018/19 to 2023/24 are apportioned on a

bed-weighting unit system. For clarity and completeness, each

property is given four units and one additional unit per bedroom.

For example, a one bedroom property is five units and a two

bedroom property is six units. The number of units for each block

or estate is totalled and divided into the cost to give a cost per unit,

and that cost is multiplied by the number of units for each

individual property to come to the charge for that property.

For service items such as lifts, door entry systems, water tanks,

the costs are equally proportioned to all properties in a block. The

Major Works service charge for 2020/21 is apportioned using this

method. As there are 24 properties in the Applicant’s block, the

overall cost is divided by 24, a method which is in accordance with

the Lease. 8. The respondent also sought to rely on the evidence of [RESPONDENT] [NAME]

who made a witness statement dated 15 March 2024, in which the

calculation and apportionment of the applicant’s service charges was

calculated. Confirmation was given that the applicant’s service charges

had been reviewed since the [NAME] had been made. The tribunal’s reasons 9. The tribunal finds the lease unambiguously requires the applicant to

contribute towards the cost of the repairs to and maintenance of the

lift, regardless of whether she uses it or not. The tribunal

understands the applicant had not previously requested a fob in

order to pass through the secure door and access the lift but has

now been provided with one. 10. In conclusion, the tribunal finds and is satisfied that the lease allows the

respondent landlord to determine and adopt a reasonable method of

apportioning service charges. The use of a bed weighting system is pone

that is commonly adopted by a local authority landlords and cannot be

considered to be either unreasonable or inappropriate.

Name: Judge Tagliavini Date: 15 May 2024

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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).