Conclusion
58.The question posed by section 27A(3) is “whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs”, and, if so, by whom and in what proportions.59.The answer is:a.The lessors are not obliged to repair the concrete slab. They could do so if the two lessees agreed and gave them access, but they would not be able to demand payment from the lessees by way of service charge.b.The concrete slab and the horizontal structure between the two maisonettes are demised with the lower maisonette, number 187, and the lessee of 187 therefore has to repair it.c.The lessee of 187A upstairs has to share the cost of that repair, and the lessee of 187 can require the lessor to enforce that covenant. It is a covenant made with the lessor but obviously the payment must be passed on to the lessee of 187.60.Accordingly I have reached a different conclusion from the FTT, and its decision is set aside and the Tribunal’s decision substituted. The decision leaves Mrs Tann in control of the repair to the concrete slab, and Mr Wijetunge is obliged to let her have access to carry out the work, but his obligation to contribute to the cost must be enforced by the lessor. Upper Tribunal Judge Elizabeth Cooke 20 October 2022