[2024] UKUT 15 (LC)

The FTT’s decision concerned three flats but the issue in relation to the third (34 Herbert Street, Plymouth) has not given rise to any appeal. The FTT proceedings arose out of county court proceedings issued by the respondent claiming unpaid service charges including £7,965.60 for the replacement of the roof of each of Nos. 96 and 146. The proceedings were transferred to the FTT for it to make a determination under section 27A, Landlord and Tenant Act 1985 of the amount of the service charge, if any, which was payable by the appellant. By amendment to its defence in the county court proceedings, the appellant disputed its liability to make any contribution towards the costs of repairs to the roof.

The FTT decided that the appellant was liable to pay the sum demanded under each of the leases. It did not distinguish between the two leases but accepted a submission by Mr Ward that each of them was subject to the implied covenants in paragraph 14 of Schedule 6 to the 1985 Act, including in particular paragraph 14(2)(a) which obliges the respondent to keep the structure and exterior of the dwelling-house and of the building which it is situated in repair. There was no dispute that the roof was part of the structure and exterior of the building and therefore it was caught by the implied repairing covenant. At paragraph 61 of its decision the FTT concluded that the implied covenant formed “part of the landlord’s obligations under the Fourth Schedule of the leases”.

The FTT then determined that the words in brackets in paragraph 5 of the Fourth Schedule which excluded the roof from the Lessor’s obligation to repair the exterior of the property were “without effect” because “the parties cannot contract out of the implied covenants unless it has been ordered by a county court” (a reference to paragraph 14(4) of Schedule 6). In the absence of evidence of any county court order authorising a modification of the implied covenant on the grant of the leases of Nos. 96 and 146, the FTT considered that it should disregard the words “(excluding the roof thereof)” where it appeared in paragraph 5 of the Fourth Schedule.

In paragraph 67 of its decision the FTT reiterated its view that the Lessee’s obligation in paragraph 12 of the Third Schedule to contribute one half of the costs and expenses incurred by the Lessor in carrying out its obligations in the Fourth Schedule extended to the cost of complying with the implied repairing covenant imposed by paragraph 14(2) of Schedule 6. It also referred to paragraph 18 of Schedule 6, but as that provision relates only to the first five years of the term, and as the relevant costs were incurred long after that period, it is not necessary to consider that part of its decision.

The FTT was also satisfied that the requirement it had identified to pay one half of the cost of repairs was reasonable, and therefore consistent with paragraph 16A(1) of Schedule 6. It concluded that each of the leases authorised the respondent to recover half of the cost of the replacement of the roof over the property from the appellant through the service charge.