[2025] UKUT 64 (LC)

In May 2023 the respondents applied to the FTT for a variation of their Lease under section 35, 1987 Act on the grounds that it failed to make satisfactory provision for the repair and maintenance of Flat 1 or land let with it (section 35(2)(a)(i) and (iii)). The variation they requested was to the definition of the Premises in the Third Schedule. They proposed that the extension and its flat roof be specifically included as part of the Premises. They also proposed that the exceptions and reservations from the demise should not include the roof of the extension. The effect would have been that sole responsibility for maintaining the roof of the extension would have fallen on the respondents themselves.

The appellant objected to the proposed variation, on the grounds that the FTT had no power under section 35 to increase the premises demised by the Lease. Referring to Friends Provident Life Office v British Railways Board (1997) 73 P & CR 9, they pointed out that, as a matter of law, the addition of premises to a demise took effect as a surrender of the original demise and a regrant by operation of law of the new enlarged demised. That, they suggested, was not a variation within the scope of section 35.

The appellant’s response to the application was less extreme than its original suggestion that no part of the extension was demised. In a statement of case, it accepted that the extension was part of the demise of Flat 1 as a result of the 1994 Deed of Variation, which was said to have caused a surrender of the whole of the premises demised by the original lease and granted a new lease in the same terms as the original but comprising whole of what was now Flat 1. The new lease was said to be subject to the exceptions and reservations of the main structure as described in the Third Schedule to the original Lease. Specifically, the appellant asserted, the joists and beams to which the ceiling of the extension was attached, and the flat roof above them, were excluded from the demised premises. The effect of the proposed variation would be to add the flat roof and to remove the exclusion of the joists and beams from the demise, which the appellant maintained was not a variation within the scope of section 35.

The appellant also asserted that it was clearly responsible for the repair of the flat roof of the extension because it was part of the Reserved Property. There was nothing unsatisfactory about that allocation of responsibility and therefore no basis on which the FTT could vary the lease.

After considering the appellant’s statement of case, the Wilsons dropped their proposal to vary the definition of the Premises in the Third Schedule to the Lease and limited their suggested variation so that it comprised only the introduction of words into the definition of the Reserved Property in the Second Schedule and the Management Company’s obligations in the Sixth Schedule to make it clear that the roof of the extension, including its joists or beams, was part of the Reserved Property, and that the appellant was responsible for keeping it in repair, as it now claimed to be.

The parties thus appeared to have achieved a consensus over responsibility for the repair of the roof. Regrettably, however, the Wilsons were not content with that consensus and maintained that there was still an ambiguity which needed to be resolved by a variation of the Lease. That ambiguity was said to be that it might in future be suggested that, by reason of the work done by the Hancocks to create the roof terrace, the surface of the flat roof could be part of the floor of Flat 5. If the roof terrace was a floor of a flat, then it would not be part of the Reserved Property, because the Reserved Property included “the joists or beams to which are attached any ceiling except where the said joists or beams also support the floor of a Flat”.

In a preliminary decision issued on 28 December 2023, the FTT determined that the variation requested by the Wilsons was one which it had power to make under section 35. That decision recorded the appellant’s acknowledgement that the extension was within the demise of Flat 1 and its assertion that the joists and beams supporting the roof, and the roof itself, were part of the Reserved Property.