and lessee of the upper maisonette
or the tenants or occupiers of the premises near to or adjoining the demised premises or of which the demised premises form part.” (I comment on the underlined words below)52.So the usual arrangement whereby a service charge is payable by reference to the cost of the lessor fulfilling its obligations is absent. Instead there is a list of the work for which each lessee has to pay a contribution. It seems to be envisaged for example that the lessor might (but does not have to) repair the foundations and the downstairs lessee can be required contribute. The lessor too has to pay a contribution to the repair of certain shared items – in clause 3(2) of the lease of 187 downstairs, and in clause 3(iv) of the lease of 187A upstairs – but only if those items are used or able to be used by the lessor, which again excludes the concrete slab.53.Reverting to the lessees’ obligations, I have underlined the additional words in the lease of 187 downstairs, which reflect the fact that this was the second lease to be granted. One would have expected mirrored wording in the first lease; the omission may be accidental, but since it is clear that the lease of 187A was drafted with the knowledge that the downstairs maisonette was to be let it seems more likely that the words “capable of being used by the tenants or occupiers of the premises or of which the demised premises from part” may have been felt to be sufficient, in the upstairs lease, to require that lessee to contribute to the cost of repairs to items shared with the downstairs lessee – in particular party structures. 54.The structural material between the two floors belongs, as I have found, with the downstairs lease. But I regard it as a party structure for the purpose of the service charge clause. In Twyman v Charrington [1994] 1 EGLR 243 the lessee of the ground floor and basement of a three-storey building was required to contribute to the cost of repairs to “mutual or party structures” and the Court of Appeal found that that included the roof of the building. Woolf LJ said:“Structure which are immediately adjoining the demised premises shall be regarded as party structure, and those parts which are used for their common benefit which are not immediately contiguous should be regarded as mutual, and I would so regard the roof.”55.This horizontal structure immediately adjoins the demised premises at 187A and is used for its benefit (for support) and so its repair falls within the service charge clause at clause 2(9) of the lease. 56.Accordingly the cost of repairs to the concrete slab can be shared through the service charge, since this is pre-eminently a structure that both parties use (one to shelter a ceiling, the other to support a floor). Note that the requirement is that the item be used in common with the lessor or the tenants of the premises adjoining the demised premises (that is, of the downstairs maisonette) so there is no requirement for the lessor to be using the concrete slab too.57.As we have noted above, each lessee is able to require the lessor to enforce the other lessee’s covenants. I take the view that clause 2(9) in the lease of 187A upstairs enables the lessor to require the upstairs lessee to contribute to the cost of repairing the slab, and enables Mrs Tann to require the lessor to enforce that covenant. The contribution would obviously have to be passed on to her as she would have incurred the cost of the repair. As to the amount of the contribution I see no reason to depart from the FTT’s conclusion that each lessee must pay half the cost of the repair, and no-one has suggested that I should.