A decision of the First-tier Tribunal in August 2023, brought to our attention by Robert Bowker of Tanfield Chambers and to whom we are grateful, relating to a question that is becoming more prevalent now following the introduction of the Building safety Act 2022, will be of interest to you.

It relates to how to resolve issues of access, repair and maintenance under leases where imminent work is required but where the leases are poorly drafted or simply did not foresee and thus failed to accommodate for a specific type of issue arising.  The question was, can the leases be varied so that the landlord can carry out the necessary works and/or the lack of clarity as to liability for the works be resolved.

The case is Britannia Village (Nine) Residents Management Company Ltd (otherwise known as Western Beach Apartments) -v- Leaseholders (LON/00BB/LVL/2021/0008).

Background

The matter related to Western Beach Apartments, a block of residential flats on the site of the Royal Docks in London.  There were fire safety concerns over the building due to combustible cladding and stacked timber decking on the balconies.  Substantial remedial work was required to remove the hazardous materials but the lease failed to “make satisfactory provision for the repair and maintenance of the balconies”.

Specifically the leases were not clear on a number of points relevant to the application but which included at what point the repairing obligation of one party started and the other party stopped.  The balconies were demised to the flats but it was not clear as to who was liable to repair certain parts.  

The Applicant landlord (the headlessee to the building), therefore applied to the First-tier Tribunal for a variation of the lease under section 35 of the Landlord and Tenant Act 1987 (“the 1987 Act”).

Section 35

Under s.35 of the 1987 Act, a party to a (long) lease of a flat can apply to the Tribunal for an order varying the lease on the grounds that the lease fails to make satisfactory provision with respect to the repair or maintenance of the flat in question, or the building containing the flat, or any land or building which is let to the tenant under the lease or in respect of which rights are conferred on him under it.  Please refer to our article How to vary a residential lease – KDL Law for further information on applications under s.35 of the 1987 Act.

Applications

As well as the application under s.35 of the 1987 Act for a variation of the lease, the Applicant also made two other applications to the Tribunal.  These were:-

1. To obtain a determination, under section 27A of the Landlord and Tenant Act 1985 (“the 1985 Act”), as to whether the cost of the balcony works would be payable under the service charge provisions and whether that cost would be reasonable;
2. To obtain a determination under section 20ZA of the 1985 Act to dispense with all or any of the consultation requirements in respect of the works to the balconies.

Decision

The Tribunal agreed that the leases did not make satisfactory provision for the repair and maintenance of the balconies and so ordered that the leases of 119 flats be varied under s.35 of the Act 1987 for the following reasons.

• In considering the construction of the building and the balconies, it was not clear in the lease which parts the landlord was responsible for repairing and maintaining and which parts fell to the leaseholders;
• As a result of the specific design of the balconies, a failure to repair or maintain one balcony could adversely impact the other flats or even the structure or common parts of the building;
• The Tribunal considered as wholly inadequate and impractical the present lease provisions which shared the maintenance and repairing obligations for the balconies between the landlord and the leaseholder;
• Despite the balconies falling within the demise (and so technically the repairing liability of the leaseholders), the Tribunal considered that varying the terms of the lease to specify that the balconies should fall under the landlord’s obligation to repair and maintain, would result in a more cohesive approach in terms of management, maintenance and safety;
• The arrangement resulting from the point above, requiring the landlord to carry out the works to the balconies, enabled the landlord to recover the costs incurred in doing so and allow them access through the flats in order to undertake any repair and maintenance work.

Our article Whose door is it anyway? touches on similar ground to the balcony repairs as it relates to the requirement for flat entrance doors to be safe from fire in line with the Fire Safety Act 2021, which could be an issue if it is not clear who is responsible for replacing the doors under the lease or whether it is classed as a repair obligation.

Conclusion

The Tribunal’s order was extremely practical as it not only allowed the landlord access to carry out maintenance and repairs for urgent works to remove any fire hazards, but also allows the landlord to have control going forward over the more routine remedial and maintenance works for the duration of the leases.

The decision should provide reassurance to landlords as it will enable them, through the courts, to take back control and undertake urgent works where the leases are unclear as to who is responsible for such works.

For more information, please feel free to contact a member of the team on 01435 897297 or info@kdllaw.com.

Disclaimer

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

Source : KDL Law