[2025] UKUT 56 (LC)

The FTT decided that those tenants whose agreements included the printed schedule were not obliged to contribute towards the cost of lift maintenance and servicing. The list included “daily building fabric” but the FTT did not think that “this phrase would be understood by the reasonable reader to include the maintenance and/or repair of items of plant/machinery such as a lift and would generally be understood to refer to the structure of the building and perhaps its decorative surfaces and floor coverings”. Nor did it consider that evidence of what had been charged under that heading was of assistance in understanding what the charge for daily building fabric was intended to cover. There was no ambiguity which could be filled by a consistent course of dealing because the list “clearly does not include the charge in question”.

I do not agree with the FTT that the printed list of services clearly does not include lift maintenance and servicing. The meaning of many items on the list is far from clear and either daily building fabric, or cyclical maintenance fund could be construed as covering the cost of such work.

The agreement places a variety of obligations on NHG to repair the structure and exterior of the building, service installations and common parts. These include an obligation to take reasonable care to keep the lifts in reasonable repair and safe and fit for use by the tenant. As far as I can see there is no reference in the standard forms of agreement to “building fabric” so the inclusion of “daily building fabric” in the list of services for which the service charge is payable cannot be read as a specific reference to any of these obligations. It is true that the printed list does not refer expressly to lift maintenance, but I do not think it is possible to say that a reasonable reader of the agreement would conclude that “daily building fabric” did not include the cost of lift maintenance or that the cyclical maintenance fund could not also have been a pot of money from which those costs were intended to be met. In my view both expressions are of uncertain breadth, but daily building fabric is certainly capable of including work on any part of the fabric of the building, including the lifts.

The FTT stated that every demand for service charges which it was shown included a sum for lift repair or maintenance. On that basis it was satisfied that the course of dealing between NHG and tenants whose agreements did not include a schedule of services demonstrated their agreement that the cost of this item was recoverable. Although the evidence does not show that lift servicing and maintenance was one of the services taken into account when the original service charge was calculated, it has not been suggested that it appeared as a new item at a later date. It is a reasonable inference that the original bargain between the parties was on the basis that the total service charge included a sum representing the estimated cost of lift servicing and maintenance in the first year. That inference is sufficient to cure the ambiguity and to allow NHG to include those costs in its service charge demands.

I would therefore allow the appeal on the second issue. The FTT was satisfied that the sums claimed for lift servicing and maintenance were reasonable and I substitute a determination that the tenants whose agreements include the printed schedule have the same liability to pay those sums as the remaining tenants.