The dispute between the parties
4.187 Dudden Hill Road is a house comprising two maisonettes; number 187 is the ground floor maisonette, held by the appellant on a long lease, and 187A is the first-floor maisonette above it, held by Mr Wijetunge. The lower ground floor has been extended beyond the first floor, so that the appellant has an additional room beyond the kitchen; the roof of the extension is the balcony of 187A. The roof consists of a concrete slab, with a ceiling below and an asphalt surface above; the concrete slab is cracked and needs repair.5.The freeholders wanted to know whether they were obliged, under the terms of the leases of the maisonettes, to repair the concrete slab and, if so, whether they could recover the cost from the lessees by way of service charge. To that end they made an application to the FTT. No service charges had been demanded when the application was made, and so there was no issue about the reasonableness of charges; instead, the FTT was asked to exercise its jurisdiction under section 27A(3) of the Landlord and Tenant Act1985 which provides:“(3) An application may [be made to the FTT] for a determination 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 it would, as to—(a) the person by whom it would be payable,(b) the person to whom it would be payable,(c) the amount which would be payable,(d) the date at or by which it would be payable, and(e) the manner in which it would be payable.”6.The freeholders argued that the terms of the lease required them to repair only those parts of the freehold that were not demised to either lessee; that the entire thickness of the extension roof/balcony floor was demised and that therefore that either or both of Mrs Tann and Mr Wijetunge must repair the concrete slab. 7.Mrs Tann’s case before the FTT was that the freeholders were obliged by clause 3(2) of her lease to repair the “roofs” of her maisonette, which she took to mean the main roof of the building and also the extension roof. She was and remains willing to pay a contribution towards that work, although there is a separate argument about a set-off, which was not before the FTT, and there is a dispute about the cause of the damage which is not within the jurisdiction of the FTT or of this Tribunal.8.The FTT therefore had to consider:a.whether the entire extension roof/balcony floor was demised to either or both the lessees;b.whether the freeholders were liable to repair it and could charge the cost by way of service charge; andc.if so, in what proportions the service charge was payable by the two lessees.9.The FTT was also asked to consider a number of other issues, some of them raised by Mrs Tann, most of which it rejected as irrelevant; there has been other litigation between the parties and a long history of acrimony, none of which is relevant to what the Tribunal has to decide. In particular the Tribunal has no jurisdiction to make any judgment about how or why the concrete slab was damaged.10.The FTT set out the relevant terms of the two leases in a helpful tabular form so that it is possible to see side-by-side the descriptions of the demised premises and the parties’ various obligations, and I gratefully reproduce the FTT’s layout:11.The FTT decided that:a.The freeholders were obliged by the leases to repair only those parts of the building that are “used or capable of being used by the lessor and the lessee” (clause 3(2) of the 187 lease and 3(iv) of the 187A lease); andb.The lessees are required to pay service charges only in respect of the lessor’s costs of carrying out that obligation.c.“While the obligation includes party walls and party structures the Applicants neither use nor are capable of using the concrete slab between 187 and 187A and are not liable for its repair under either of the leases.”d.“Clause 1 of each lease effectively demises the concrete slab to both 187 and 187A because:i.R1, the lessee of 187 is liable to repair the foundations of the demised premises and party structures (clause 2(8))ii.R2, the lessee of 187A is liable to repair the roof of the demised premises and party structures (clause 2(8));iii.The leases do not reserve any part of 187 and 187A to the Applicants.”e.The leases were silent as to the proportions payable by the lessees in respect of party structures, and a fair proportion would be 50% each.12.Mrs Tann has permission from this Tribunal to appeal the finding at c above, on the basis that it was insufficiently explained and seems to leave no content to the freeholders’ repairing obligations. That means that points a to d above have to be re-examined since the findings are interconnected. 13.Mrs Tann also has permission to appeal on the ground that she was not afforded a fair hearing by the FTT because she lost her video connection during the hearing and missed part of it. I will deal with that ground first.