Modernisation is not repair

For many long leaseholders who own a flat in a block, a common complaint is that their Landlord or Management Company has not carried out sufficient repairs to the fabric of the building. However the facts of a recent case reminds Landlords that they can sometimes be criticised for carrying out too much work!

The terms of a long residential Lease must be carefully drafted. There are many covenants (i.e. obligations) which will be imposed on the tenant and the Landlord and/or Management Company. Of particular importance to the tenant is to ensure that there is a covenant imposed on the Landlord or Management Company to repair the fabric of the building.

When deciding whether work falls within the obligation contained in a repairing covenant, a court will consider a number of factors to decide whether the work in question could be fairly called 'repair'. Amongst many other things, a court would consider the terms of the Lease, the nature of the building, the state of the building at the date of the Lease and the nature of the defect and the extent and cost of the proposed remedial works.

In the case in question, in September 2013 the Management Company of the block started a programme of repair and redecoration, which included replacing only those windows in flats that belonged to tenants who agreed to pay for the new double glazed units. 28 leaseholders decided to replace their windows on this basis, 18 did not. Two of the tenants objected to being asked to pay for any of the cost of the window replacement work through the service charge.

The court applied a common sense approach. The windows had not been in a sufficiently poor condition to justify their replacement. Accordingly the work was not covered by the Management Company's repairing covenant nor was it recoverable via service charge contribution. The fact that the only windows and frames that were going to be replaced were those for which the individual tenants agreed to pay, was a further factor that the court took into account, indicating that the windows as a whole were not in need of replacement.

As is often the case, this decision does not tell us anything new and reasserts existing law. Replacement will only be justifiable if it is reasonable in the circumstances.

The case is, however, an important reminder to tenants to look carefully at the elements of service charge cost that a Management Company or Landlord proposes to charge. Conversely, when deciding on what repairs to undertake it is important for Landlords and Management Companies to carefully consider the terms of the Lease.

The case is an important reminder to tenants to take detailed legal advice as to the terms of a Lease when purchasing a flat. This is especially relevant if the building is older and the fabric of the building is in need of repair.

Case: Tedworth North Management Limited vs. Mr L Miller [2016] UKUT 0522 (LC)

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