[2025] UKUT 64 (LC)

The appellant company is owned in equal shares by the lessees of the four flats in the building, but at some point before 2002 three of the four flats came to be owned by Hayley and Martin Hancock who thereby obtained control of the appellant. The Hancocks do not live in the building but let two of the flats and use Flat 5 on the first floor as an office from which Mrs Hancock runs a business.

A window in one of the rooms of the Hancocks’ Flat 5, on the first floor, overlooked the ground floor extension to Flat 1. In 2002, without any formal consent from Mr and Mrs Wilson, who by this time had acquired the Lease of Flat 1, the Hancocks enlarged this window to create a door providing access on to the flat roof. They erected railings around the perimeter of the flat roof and laid a fibreglass waterproof membrane on the original surface, on top of which they installed timber decking and finally artificial grass. Since 2002 the Hancocks have made use of the roof of the extension as a roof terrace for themselves and their staff who work in Flat 5.

In his evidence to the FTT Mr Wilson complained of a long history of poor relations between himself and his wife and Mrs Hancock in her capacity as director of the appellant. The FTT made no determination in relation to those complaints which included allegations of poor accounting practices and a lack of information concerning service charges and a neglect of proper maintenance of the building, except where it was for the benefit of flats belonging to the Hancocks. Correspondence reflecting these complaints began not later than 2010.

The parties fell into the most recent phase of their dispute when water penetration damaged the ceiling of the Wilsons’ ground floor extension, eventually causing it to become stained and to bow, requiring part of it to be removed. The cause of the damage has been a matter of disagreement between the parties since at least 2020. The FTT did not determine whether the water penetration was the result of damage to the surface of the flat roof, or was associated with the door opening which had been created in 2002.

In June and again in October 2021 the respondents’ solicitors told Mrs Hancock that the roof of the extension could not be used as a terrace and asked her to remove the alterations undertaken in 2002 and reinstate the original window of Flat 5. Mrs Hancock refused to comply and, in February 2022, in a response to these requests her solicitors asserted that the extension as a whole did not form part of the premises demised by the Lease of Flat 1.