Discussion
What the FTT had to decide29.It is worth going back to the basis of the FTT’s jurisdiction in this case. Section 17A(3) of the 1985 Act enables it to decide “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.30.So the application to the FTT was about service charges. Service charge provisions can generally not be understood without first knowing the extent of the demised premises and the obligations of the parties to the lease, so I start with the demised premises, look at the repairing obligations, and then analyse the central question about service charges. In doing so I bear in mind that the upstairs lease, 187A, was granted first, on 6 June 1980, and the downstairs lease, 187, was granted shortly after on 23 September 1980. The leases are to be construed in the light of the ordinary meaning of the words used, and in light of “the facts known to the parties when the document was executed” (Arnold v Britton, above), and so it is important to note that the leases refer to each other. The parties to the lease of 187A were therefore aware that the downstairs maisonette was going to be let, and the parties to the lease of 187 will have been aware of the upstairs lease which was already in place.The demised premises31.The demise in each lease is set out at paragraph 10 above. Neither lease says anything about the concrete slab or the rest of the horizontal structure between the maisonettes, nor indeed anything at all about the structure of the building. Mrs Tann says that her lease includes only the internal surfaces of the walls, floor and ceiling, and that the structure remains with the lessor. But the lease does not say so.32.It is well-established that in the absence of an express reservation a lease must include the external walls. As Diplock LJ put it in Sturge v Hackett [1962] 1 WLR 1257:“It is … well settled law that , in the absence of provisions to the contrary in a lease, a demise of part of a building divided horizontally or vertically includes the external walls enclosing the part so demised.”33.Neither lease contains any express reservation of the structure of the building to the lessor. I find that both leases include the external walls. For the same reason I find that the horizontal structure between the maisonettes, including the concrete slab, was not reserved to the lessor. 34.That is consistent with the very limited nature of the lessor’s right to enter, reflected in the lessee’s covenant at clause 2(13) of each lease which says:“To permit the Lessor and the lessee tenants or occupiers of the adjoining premises and in particular of the upper maisonette and their respective agents or workmen at any time or times during the said term [on notice] … to enter upon the demised premises for the purpose of cleaning and for executing repairs or alterations of or upon such adjoining premises”35.There is no mention here of the lessor entering in order to repair its own property. Similarly clause 2(14) requires the lessee to permit the lessor to enter in order to repair etc service conduits “in connection with or for the accommodation of the upper maisonette”, not for the purpose of repairing any parts retained by the lessor. There is a reservation to the lessor in clause 1 of the two leases to enter the demised premises (exception (iv)) for the “purposes mentioned” which appears to refer only to the alteration and rebuilding of the demised premises (exception (iii)) and not to repair or maintenance.36.Therefore the concrete slab and the rest of the horizontal structure between the properties were demised to one or both the lessees. There is nothing in the description of the demise in the two leases to say whether it was included in the upper maisonette, or the lower one, or divided horizontally between the two as the FTT found. 37.There are obvious problems with a horizontal division of the structure between two flats or maisonettes so that two lessees have to repair half of it each and no one person can be required to repair the whole structure. At paragraph 7-17 of Dowding and Reynolds on Dilapidations the learned authors comment that “This seems an unlikely intention to attribute to the parties in the ordinary case”. It is unlikely that the parties to the lease of 187A intended the demise to include half of the horizontal structure below the maisonette and half the concrete slab, in the absence of express words to that effect, and I find that that is not what the lease did.38.Moreover, the most usual arrangement for flats is that the demise extends from the underneath of the flat’s own floor (excluding the horizontal structure below) to the underneath of the floor of the flat above (including the horizontal structure above).In Dowding and Reynolds on Dilapidations at paragraph 7.16-17 there is reference to Greystone Property Investments Limited v Margulies (1984) 47 P & CR 472, where Griffiths LJ observed that the general expectation of anyone taking a lease of a flat is that he acquires “the space between the floor of his flat and the underneath of the floor of the flat above”. The parties to the original lease of 187A, granted in June 1980, might well have intended that the demise would include the horizontal structure above his ceiling (whether or not it also included the roof) and will have had in mind that the forthcoming lease of 187 downstairs would include the space and structure between the two storeys. And in that case the parties to the lease of 187, knowing the terms of the demise of the upstairs maisonette, will have intended that the demise would include the space and the horizontal structure above the ceiling – both the joists inside the main building and the concrete slab above the extension – as far as the underside of the floor of 187A above.39.I find that that was the intention of the parties to both leases. Further support for that conclusion can be gathered from the repairing and service charge provisions, as will be seen.The repairing obligations40.Each of the two leases imposes repairing covenants on the lessees at clause 2(8). The lease of 187A, upstairs, does not contain a repairing covenant on the part of the lessor, but the lease of 187, downstairs, does. There are therefore three repairing covenants as follows:a.The lessee of 187A has to repair the demised premises “and in particular the roof of the Maisonette”, and “all party and other walls and fences sewers drains pathways passages easements and appurtenances thereof”.b.The lessee of 187, downstairs, has to repair the demised premises “and in particular the foundations”, and then the same list as above: “all party and other walls and fences sewers drains pathways passageways easements and appurtenances thereof”.c.In the lease of 187 the lessor covenants at clause 3(2) both to repair and to contribute “a rateable proportion” of the expense of repairing: “all ways passageways pathways sewers drains watercourses water pipes cisterns gutters roofs party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessor with the Lessees and the tenants or occupiers of the premises near to the demised premises or of which the demised premises form part”.41.Each lease contains provision for the lessee to require the lessor to enforce the other lessee’s covenants, subject to an indemnity (clause 3(v) of the lease of 187A, clause 3(3) of the lease of 187).42.Each lease gives the lessee the right to enter the other maisonette in order to repair and maintain their own demise (clause 1(iv) in each lease).43.Is the lessor obliged as Mrs Tann says, if only to the lessee of 187, to repair the concrete slab and the rest of the horizontal structure between the maisonettes? 44.I agree with Mr Sadiq that the lessor has to repair the items in the list set out above only if either they “belong to” the lessor or if they are used or able to be used by the lessor with the lessees. I agree that items “belonging to” the lessor are the parts of the property that are not demised; that comprises very little, as we have seen, but the plans indicate that the garden paths and fences are not demised to either lessee (each has half the garden). The concrete slab and horizontal structure are not reserved to the lessor, and cannot be used by it. So the lessor is not under an obligation to repair them. Mrs Tann relies upon the word “roofs”, in the plural, among the items the lessor has to maintain, but I do not think that assists her because the list of items is qualified by the requirement that each be capable of shared use. The lessor has no way to make any use of the horizontal structure between the properties. “Roofs” can refer only, if it refers to anything, to the main roof.45.The Tribunal in giving permission to appeal expressed concern that the FTT’s construction of the lease appeared to leave very little content to the lessor’s repairing obligations in Mrs Tann’s lease. Having now had the opportunity to read both leases, and in light of the absence of any repairing obligation at all on the part of the lessor in the upstairs lease, I conclude that that appears to be exactly what the parties intended. 46.If the horizontal structure between the maisonettes and the concrete slab were split medially between the lessees as the FTT said, then each lessee would be required to repair their own half; obviously neither can repair half the concrete slab or half a joist without co-operation from the other and that arrangement would be very problematic; I have found that that was not the parties’ intention.47.If the slab had been demised as a whole to the lessee of 187A then that lessee would have had to repair both the horizontal structure between the floors and the roof, which would have placed a disproportionately heavy practical burden on that lessee, which lends support to my conclusion that the parties to the original leases are likely to have expected the concrete slab and the horizontal structure between the floors to belong with the downstairs flat, 187. I have already found that they do, and it follows that Mrs Tann is responsible for getting the repair done to the concrete slab. I appreciate that that may be unwelcome to her, but it does give her control over the process.48.Most importantly for Mrs Tann, can the lessee of 187A be required to contribute to the cost of the repair by way of service charge?The service charge provisions49.Clause 2(9) of the lease of 187A requires the lessee to pay a proportion of the cost of repairing and maintaining:“all ways passageways pathways sewers drains pipes watercourses water pipes cisterns gutters party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessee in common with the Lessor or the tenants of [sic] occupiers of the premises near to or adjoining the Demised Premises or of which the Demised Premises form part.”50.The “of” in the penultimate line must be a typo for “or” and I read it as such.51.Mrs Tann’s obligation to pay a service charge is in clause 2(9) of her lease; she is to pay a “rateable and due proportion” of the cost of repairing etc:“all ways passageways pathways sewers drains pipes watercourses water pipes cisterns gutters foundations party walls party structures fences easements and appurtenances belonging to or used or capable of being used by the Lessees in common with the Lessor