The substantive appeal about the service charges; the parties’ arguments
Background to this issue20.The FTT offered no explanation for its finding about the lessor’s liability to repair, quoted at paragraph 11 c above, apart from its findings at a, b and d. The FTT’s conclusion cannot be understood without careful perusal of the provisions of the leases, which are poorly drafted and do not fit together in the way one would expect.21.The demise at clause 1 of each lease refers (as can be seen at paragraph 10 above) to a plan. The plan for 187, Mrs Tann’s property, shows the entire footprint of the building shaded red. The plan for 187A likewise shows that the demise corresponds with the full extent of the area of the building, with the original extent shaded red and the balcony hatched red; it is not in dispute that the upper surface of the balcony is part of the demise of the upstairs flat. The lease of 187A was granted before the downstairs lease; the ground floor doorway and staircase are clearly part of the upstairs demise. Half of the garden is demised to each lessee but the garden paths are not demised.Mrs Tann’s arguments22.Mrs Tann went through clause 1 of her lease and the description of the demised premises. She noted that there is no mention of a roof, nor any suggestion that the structure above her property is horizontally divided. Her case is that what was demised to her is the internal walls of the maisonette, the ceilings and the floors. The structural parts are retained by the lessor. She pointed to the words of clause 3(2) which defines the lessor’s repairing obligation and requires it to repair the “roofs”, in the plural. That must mean, she argued, both the main roof of the building and the balcony roof. Clause 3(2) also requires the lessor to repair “party structures”; she argued that the building is the lessor’s investment and it cannot have intended to leave responsibility for its structure with the lessees. She referred to clause 2(13) which requires the lessee to permit the lessor to enter and repair.23.Mrs Tann referred to the Supreme Court’s decision in Arnold v Britton [2015] UKSC 36 and to the well-known principles at paragraph 15. The lease is to be interpreted in light of the ordinary and natural meaning of the words in question, any other relevant provisions of the lease, the purpose of the clause and the lease, the facts known to the parties when the document was executed, and commercial common sense, but disregarding evidence of the parties’ subjective intentions. Mrs Tann said that the lessor may have made a bad bargain but the lease was, she said, drafted by the lessor and the respondent freeholders must abide by it whether or not it makes commercial sense for them.24.Mrs Tann relied on a number of other cases. She referred to Hallissey v Petmoor Developments Limited [2000] EGCS 124, where it was held that a landlord's repairing covenants included an obligation to repair the weatherproof surfaces of a roof terrace as part of the exterior fabric of the underlying structural parts of the building. The case looks like an attractive comparison because the roof concerned did consist of a concrete slab with surrounding material. But it does not help me because in that case the lease expressly reserved the structure to the landlord, so that there was no dispute about the concrete slab itself; the dispute was about the upper surface materials, which is not the problem before the Tribunal here. The same can be said of Ibrahim v Dovecorn Reversions Limited (2001) 82 P & CR 28, where again the dispute was about liability to repair a roof terrace, but again the lease expressly reserved the “main walls and structure” of the building to the lessor and it was agreed that the lessor was responsible for joists and the dispute was about the layers of material above them. Nor can I derive anything useful from the First-tier Tribunal’s decision in Frogour Limited v Farsi and Lenjawi (2021) because the dispute there was about the surface of the roof.25.Mrs Tann accepted that clause 2(8) of the lease would require her to contribute to the cost of repairing the concrete slab, because of its reference to “party structures”.The arguments for the respondents26.Mr Sadiq also started with the demise in each lease. It is the freeholders’ case that both leases demise the external walls as well as the internal surfaces of the walls, and that there is no reservation of the structure of the building to the freeholders, with the exception of the main roof (which the lessor has treated as not demised). Accordingly, even though there is no mention of the concrete slab, or of the division between the two storeys, both must be demised to one or both leaseholders. The freeholders are not concerned with where the horizontal boundary lies. Furthermore the leaseholders are each responsible (under clause 2(8) in each lease) for the repair of their demised premises and therefore one or both of them and not the lessor is responsible for the concrete slab.27.Mr Sadiq explored the rather different terms of the two leases. The upper floor lease was granted first and in fact imposes no repairing obligations at all on the lessor (except to carry out the obligations of the downstairs lessee whilst the downstairs maisonette remains unlet). Instead, clause 3 (iv) obliges the lessor to pay “a rateable proportion” of certain repairs including the repair of the roof, for which the lessee is responsible (clause 2(8) of the 187A lease). The downstairs lease was granted later, and does impose a repairing obligation on the lessor. There is a list of items in clause 3(2) which the lessor must repair only if either a.the item “belongs” to the lessor – which Mr Sadiq says means that the item is not demised), or b.if it is used by the lessor, or c.if it is capable of being used by the lessor.28.Mr Sadiq argues that the lessor must repair the garden paths, the fences at the boundaries, and the main roof of the building but not (despite the plural “roofs”) the roof of the extension because that is demised, and is neither used nor capable of being used by the freeholders.