[2024] UKUT 15 (LC)

The only issue in the appeal is whether the FTT was right to find that the appellant is liable to contribute towards the costs of repairs to the roof in the case of each of the two flats. The arguments presented to the FTT, and by the parties in their statements of case and skeleton arguments for the appeal, were very elaborate, and focussed at length on principles of interpretation and other issues which, on closer examination, have little or nothing to do with the issue to be determined.

Stripped of elaboration, Mr Crozier’s argument on behalf of the appellant in relation to No. 96 was that the lease included an implied covenant by the Lessor to repair the roof, imported by paragraph 14(2) of the Schedule 6. Contrary to the view of the FTT, the implied covenant was not to be read as part of the Fourth Schedule to the lease and the cost of complying with it was not part of the costs and expenses referred to in paragraph 12 of the Third Schedule to which the Lessee is required to contribute. The lease of No. 96 imposed no other obligation on the appellant to contribute to the cost of repairs to the roof and the FTT’s decision was therefore wrong.

In relation to the ground floor flat, No. 146, Mr Crozier submitted that the roof was part of the reserved premises which the Lessor was obliged by paragraph 4 of the Fourth Schedule to keep in repair. The cost of complying with that obligation was expressly excluded from the Lessees’ contribution liability under paragraph 12 of the Third Schedule. The Lessee was required to contribute towards the Lessor’s costs of complying with the remainder of its obligation under the Fourth Schedule, including paragraph 5, but paragraph 5 specifically excluded repairs to the roof. There was no other provision in the lease which required the Lessee to contribute towards the cost of repairs to the roof and, once again, the FTT’s conclusion was therefore wrong.

On behalf of the respondent Mr Ward invited me to confirm the decision of the FTT for the reasons it gave or for an alternative reason which he had raised before the FTT but which it had not had to consider. He submitted in relation to No. 96, the upper floor flat, that the FTT had been correct to treat paragraph 5 of the Fourth Schedule as if the words “(excluding the roof thereof)” had been removed because those words were an attempt to exclude or modify the statutory implied obligation of the landlord to keep the structure and exterior of the dwelling and of the building in which it was situated in repair. That obligation was incorporated by paragraph 14(2) of Schedule 6 and could only be avoided with the consent of the county court obtained under paragraph 14(4). In the absence of an order of the county court, the attempt to modify the landlord’s obligation should be ignored. If the words in brackets in paragraph 5 of the Fourth Schedule were omitted, the effect of paragraph 12 of the Third Schedule was that the Lessee was obliged to pay half of the costs of keeping the exterior of the property in repair, which included replacing the roof.

As far as No. 146, the ground floor flat, was concerned, Mr Ward acknowledged that an argument based on paragraph 14(4) of Schedule 6 was more difficult. He nevertheless submitted that, viewed in isolation, paragraph 5 of the Fourth Schedule purported to exclude the landlord’s obligation to keep the roof of the building in repair; that exclusion had not been authorised by the county court as paragraph 14(4) of Schedule 6 required for it to be effective. Mr Ward acknowledged that if the Lessor’s obligations were viewed as a whole, rather than individually, his argument became problematic, since paragraph 4 of the Fourth Schedule imposed an obligation to keep the reserved premises, including the roof, in repair which was entirely consistent with paragraph 14(2) of Schedule 6 .

Mr Ward’s alternative argument, which had not been addressed by the FTT, focussed on the concluding words of paragraph 12 of the Third Schedule which require the Lessee to contribute to all costs and expenses incurred by the Lessor “in enabling the Lessee to enjoy the rights contained in the First Schedule hereto”.

Referring to paragraph 3 of the First Schedule, which in each lease confers on the Lessee “all rights of way support and other easements and quasi-easements rights and benefits of a similar nature now enjoyed or intended to be enjoyed by the demised premises over any part of the premises and the Estate”, Mr Ward submitted that the Lessee enjoyed rights of support, shelter and protection for the demised premises as a result of this clause. The cost of repairing the roof was part of the cost of enabling the Lessee to enjoy that right of shelter or protection and paragraph 12 of the Third Schedule therefore required the Lessee to contribute one half of the cost of those repairs. Mr Ward submitted that the same obligation arose in each of the leases.