[2024] UKUT 15 (LC)

The appeal is concerned with two flats in Rothesay Gardens, Nos. 96 and 146. Each of the flats is in a separate building. Each of the buildings is a two storey “Cornish Unit” containing four flats, two on the ground floor and two on the upper floor, each with its own separate entrance. The buildings were constructed in the immediate post-war period, either in the late 1940’s or early 1950’s. They have pre-cast reinforced concrete walls and a traditional timber pitched roof structure with hipped ends. As originally constructed the roof coverings were of concrete single lap interlocking tiles with concrete ridges and hips.

In 2018 the roofs of the two buildings were inspected by the respondents and found to be at or close to the end of their useful life. After consultation the roofs were stripped of their tiles, the roof structures were renewed and new tiles were fitted. It is no longer in dispute that the work was required, that it was carried out competently and that the cost incurred by the respondent was reasonable.

No. 96 Rothesay Gardens is an upper floor flat. The lease was granted on 26 February 1990 by Plymouth City Council to a Mr and Mrs Whitehead (referred to in the Lease as “the Lessee”). It now belongs to the appellant and the freehold reversion to the respondent.

The appellant also holds the lease of No. 146 Rothesay Gardens which was granted on 25 June 1990 by Plymouth City Council to a Mr Midgley. No. 146 is a ground floor flat.

The leases of the two flats are in the same terms which I assume were the standard terms used by the City Council in 1990 when granting right to buy leases. As will be seen, although the leases are in the same standard terms, the fact that one of the flats is on the ground floor and one on the upper floor means that those standard terms impose different obligations on the parties.

It is convenient to begin with the lease of No. 96, the upper floor flat.

The lease begins with a number of definitions in clause 1. “The property” is defined as “the building” shown on a plan annexed to the lease; notwithstanding that description it can be seen from the plan that the property is only half of the building, divided vertically and comprising No. 94 on the ground floor and No. 96 on the upper floor. The “property” does not include the other half of the building comprising Nos. 98 and 100.

The “demised premises” means No. 96, consisting of the upper storey of the property including the floor, half of the depth of the joist supporting the floor, the roof and the rain water gutters of the property as well as front and rear gardens.

The “reserved premises” means No. 94, consisting of the ground floor of the property including the ceiling and half of the depth of the joist supporting the ceiling together with outbuildings, foundation and front and rear gardens.

By clause 2 of the lease No. 96 was demised for a term of 125 years at a ground rent of £10 a year. The Lessee additionally agreed to pay a service charge and by clause 3 to comply with obligations in the Third Schedule. The Lessor covenanted to observe and perform obligations in the Fourth Schedule.

The lease reserved certain rights to the Lessee, recorded in the First Schedule. One of those rights is relied on by the respondent. It is at paragraph 3 of the First Schedule and confers on the Lessee:

“All rights of way support and other easements and all 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.”

The Third Schedule includes, at paragraph 3, a covenant by the Lessee to “keep and maintain the demised premises and all parts thereof … in a good and tenantable state of repair decoration and condition…”. As the demised premises includes the roof, on the face of it (and assuming it is enforceable) this obligation places a responsibility for the repair of the roof on the Lessee.

Paragraphs 12 and 13 of the Third Schedule are concerned with the service charge. Paragraph 12 provides as follows:

“The Lessee shall contribute and shall keep the Lessor indemnified from and against one half of all costs and expenses incurred by the Lessor in carrying out its obligations under and giving effect to the provisions of the Fourth Schedule hereto including clauses 8 and 9 of that Schedule but excluding clause 4 of the said schedule and in enabling the Lessee to enjoy the rights contained in the First Schedule hereto.”

Paragraph 13 of the Third Schedule contains more detailed payment provisions which it is not necessary to refer to.

The Fourth Schedule contains the Lessor’s covenants. Paragraphs 4 and 5 are material to the appeal and provide (so far as relevant) as follows:

“4.

The Lessor shall keep the reserved premises and all fixtures fittings and apparatus therein and additions thereto in a good and tenantable state of repair decoration and condition.

5.

The Lessor shall keep and maintain the exterior of the property (excluding the roof thereof) in good and tenantable repair decoration and condition …”

The lease of No. 146 was granted a few months after the lease of No. 96 and is in substantially the same terms other than the definitions in clause 1. Once again, the “property” is defined by reference to a plan and means the upper and lower flats comprising one half of the block. This time the “demised premises” means the lower flat consisting of the ground floor of the property up to the mid-point of the joists supporting the ceiling. The “reserved premises” are the upper flat (No. 148) consisting of the upper storey of the property including the roof. The relevant covenants and obligations are expressed in the same terms as in the lease of No. 96.