[2025] UKUT 64 (LC)

This Tribunal granted the appellant permission to appeal on the single ground that the FTT had been wrong to find that the Lease failed to make satisfactory provision for the repair or maintenance of Flat 1, or that responsibility for the repair of the roof was unclear.

Mr Mullin and Mr Clarke agreed that the question whether a lease failed to make satisfactory provision for any of the matters in section 35(2) should be determined by reference to the circumstances existing at the date of determination, and not at the date it was originally granted. In Brickfield Properties Ltd v Botten [2013] UKUT 133 (LC), the Tribunal (HHJ Huskinson) recognised that a relevant defect need not yet have caused a problem, anticipating the possibility that “the drafting of a lease plus the circumstances which arise in that particular case combine together to produce a situation where it is foreseen that at some future date there will arise a defect in the lease which is not presently apparent”.

In support of the appeal, Mr Mullin submitted that the flat roof of Flat 1 was plainly part of the Reserved Property when the Deed of Variation was entered into in 1994. That had been common ground between the parties. It was within the words of the Second Schedule (“the external main structural parts of the Building forming part of the Property including the roofs foundations and external parts” and “the joists or beams to which are attached any ceiling except where the said joists or beams also supported the floor of a Flat”). The roofs of the building were expressly excluded from the demised premises and the flat roof did not cease to be excluded because the Hancocks had made use of it. When the Deed of Variation was entered into in 1994 the flat roof was not being used as a terrace for the benefit of Flat 5. Its use as a terrace since 2002 did not alter what was demised by the lease of Flat 5 or what was reserved to the appellant. The joists or beams which supported the ceiling of the extension did not support the floor of Flat 5, they supported only the flat roof which could not sensibly be described as a floor. A floor was an internal feature. The effect of the Lease was therefore that the appellant was obliged by paragraph 6 of Sixth Schedule to keep in repair the Reserved Property, including the roof terrace and the joists which support it.

Mr Mullin suggested that the fact that the extension was not included in the Lease plan was of no significance because the plan, which was incorporated into the Deed of Variation in 1994, was described as being for the purposes of identification only and did not prevail over the express terms of the Lease. There was no ambiguity about whether the flat roof was within the demise of Flat 5; that had never been suggested by the appellant. Nor was there ambiguity about the features which had been added to the roof by the Hancocks; the appellant’s repairing obligation extended to the Reserved Property “and all fixtures and fittings therein and additions thereto”.

Mr Clarke submitted that there was no error in the FTT’s assessment. The uncertainty over the status of the extension and the rights and obligations of the parties was clear and had given rise to the dispute. The FTT’s variation was consistent with the position eventually agreed between the parties, but the consensus might not continue, especially in the event of an assignment of one of the leases or the freehold.