3 Wynols Close, Broadwell
- The building
- A one-bedroom first-floor flat in a block of four, built by the district council in about 1977, brick with a pitched concrete-tiled roof. A projecting front structure contains the communal lobby, staircase, landings and four storerooms, all enclosed by the exterior walls and covered by part of the main roof.
- What was applied for
- An appeal against a decision on whether the cost of repairing the roof over the stairwell was recoverable from a right-to-buy leaseholder, and on dispensation from consultation.
- The figures
- Four flats, built about 1977. Lease of 125 years granted under right to buy in 1994. Fixed charges of 33.75 and 76.14 pounds a year, neither variable and so neither a statutory service charge. Cost of works 6,264 pounds, of which half was claimed.
What Happened
A routine inspection found water penetrating the roof above the communal stairwell. Asbestos around some timbers led the landlord to do the work immediately without consulting. It then sought half the cost under a paragraph granting a right of way over the stairway and landing subject to payment of one half of the expense of maintaining and keeping them in repair.
What the Tribunal Held
Appeal dismissed. The Deputy Chamber President agreed the tribunal below was wrong to start with contra proferentem, holding that premature resort to that principle is not appropriate and that if used at all it should be the last tool employed, not the first, but reached the same result without it. He gave six reasons: the words are limited to the structures over which the leaseholder has a right to pass and do not include the structures enclosing the stairwell or the roof covering it; the landlord's comprehensive repairing covenant is not made subject to any contribution and there is no conventional variable service charge, so it would not be right to approach the lease expecting to find a significant variable contribution to structural upkeep; an unqualified right of protection from the roof carries no payment condition, a clear indication the parties did not contemplate a contribution; the plans colour no vertical surface or roof; the roof is one continuous structure with no apportionment mechanism; and the proportions are based on usage, not benefit.
What it means for a block here. In a right-to-buy lease with no variable service charge, a payment condition attached to a right of way buys you only the surfaces you walk on, not the walls or roof enclosing them.