Construction of the lease

The starting point in any service charge dispute is the lease. The landlord can only recover charges from the tenant if they are recoverable under the terms of the lease. This page deals with the following points:

  • Adding new item to the service charges
  • Certificates
  • Caretaker's flat - recovery of landlord for notional rent in respect of the flat.
  • Credit for third party contributions

Adding new items to the service charges

Item not charged for in previous years

Curo Places Ltd v Pimlett

[2020] EWCA Civ 1621

Summary

The appellant landlord successfully appealed against the Upper Tribunal's decision that, on a proper construction of the tenancy agreement, the respondent tenant was not liable to pay an additional service charge in respect of grounds maintenance when he had not previously been charged for such services. The Court of Appeal found that the relevant clause in the lease did entitle the landlord to vary the agreement by adding services if it believed that this would be useful.

Facts

By a tenancy agreement, dated 18 August 2008 and made between the landlord and the tenant, the tenant occupied a one-bedroom bungalow in a sheltered housing scheme. The bungalow was one of 32 residential units set in communal grounds with lawns, trees and paths. The landlord maintained the communal grounds and had done so prior to the tenancy agreement.

Until 2017, the landlord did not seek to levy a charge for grounds maintenance on tenants whose tenancies commenced before the end of April 2010 (when a change was made to the standard tenancy agreement terms to expressly cover grounds maintenance).

The landlord served a notice of variation, dated 16 January 2017, on the tenant seeking to add grounds maintenance to the services under the tenancy agreement. The tenant objected. In circumstances where grounds maintenance had been provided without charge since his tenancy commenced in 2008, he argued that the landlord had no power under the terms of the tenancy agreement to add it to the service charge.

The same issues existed in over 3,400 other tenancy agreements so the determination of this case would have significant financial implications for the landlord.

The tenancy agreement contained the following particularly relevant terms:

Clause 2.10.1 (iii) ("Services"):

"The Trust agrees to provide the Services (if any) listed in the Tenancy Agreement and for which you pay a service charge providing that, subject to consultation with tenants:

(iii)  it may provide extra Services [sic] if it believes this would be useful."      

Clause 6.3.1 ("Altering the Agreement"): "Except for changes in rent or service charges the terms of this Tenancy may only be changed if you and the Trust agree to the changes in writing."

Issues

Whether on a true construction of the service charge provisions in the tenancy agreement the tenant was required to pay a service charge for grounds maintenance, when he had not previously been charged for such services.

First instance

The tenant applied to the FTT for a determination, pursuant to s. 27A of the Landlord and Tenant Act 1985, of his liability to pay service charge in respect of grounds maintenance. The FTT found that on a true construction of the tenancy agreement the landlord was not entitled to designate grounds maintenance as an “extra service” pursuant to clause 2.10.1(iii) or to charge for it (the “Construction Point”). 

The tenant had also contended that if the tenancy agreement did permit the landlord to charge an additional service charge in respect of grounds maintenance the term was not binding on him by virtue of the Unfair Terms in Consumer Regulations 1999 (the “1999 Regulations Point”). The FTT did not decide the 1999 Regulations Point.

The Upper Tribunal dismissed the landlord’s appeal on the Construction Point but granted the landlord permission to appeal to the Court of Appeal.

Decision on appeal

The Construction Point

Allowing the appeal, the Court of Appeal found that the Upper Tribunal had erred in reading "extra services" in clause 2.10.1(iii) as connoting services that were extra to those in fact being provided by the landlord. The Court of Appeal found that as a matter on construction “extra services” were those which were extra to the services listed in the tenancy agreement (paragraphs [21] – [23]). The Court of Appeal further found that sub-paragraph (iii) entitled the landlord to vary the agreement by adding services if it believes this would be useful (paragraphs [23]).

The landlord was therefore entitled to start charging for grounds maintenance in 2017 even though it had been providing the service, at no charge, for many years.

The 1999 Regulations Point

The landlord asked the Court of Appeal to also determine the 1999 Regulations Point if it were to find in favour of the landlord on the Construction Point. The Court of Appeal held that as the 1999 Regulations Point had not been determined by the FTT or the Upper Tribunal it was not appropriate to make a finding on the issue on a second appeal. The 1999 Regulations Point was remitted to the FTT for a determination.

Failure to serve a certificate

What is the effect – what does the lease say?

Urban Splash Work Ltd v Ridgway & Cunningham

[2018] UKUT 0032 (LC)

Summary

The Upper Tribunal considered an appeal relating to the recoverability of service and administration charges pursuant to the terms of a lease, where the landlord failed to issue a certificate.

Facts

The Appellant is the freehold owner of a block of apartments and the Respondents are the long leasehold owners of a flat within the block. The parties were in dispute about various service charges and other fees levied upon them by the freeholder between 2010 and 2017. Although required by the lease, no certificates of expenditure for any of the service charge years were served on the tenants until December 2016. The managing agents had levied on the tenant several administration charges arising from enforcement action taken to recover the arrears.

Issues

  • Whether the failure to certify the landlord’s expenditure was a condition precedent to recovery of service charges; and
  • Whether the various administration charges were recoverable?

Decision

The FTT declined to make a determination about the 2010 service charge year on the grounds that there was insufficient evidence to do so and gave the freeholder an opportunity to file further evidence. Further, it found that none of the variable administration charges were payable and made a section 20C order in favour of the tenants.

Decision on Appeal

On appeal, the Upper Tribunal noted that the Appellant failed to serve on the tenants any certificate of expenditure until December 2016. The Appellant submitted that the service of such a certificate was not a condition precedent to the tenants’ liability, relying on cases such as Pendra Loweth Management Limited v North [2015] UKUT 91 (LC).

However, as the Tribunal pointed out, these cases did not establish any general principle that the provision of a certificate is not a condition precedent to liability – rather each case turned on the construction of the lease in question. In this case, on its proper construction the lease did provide for a certificate to be served before the tenant was liable make payment. Further, none of the certificates belatedly served by the landlord complied with the terms of the lease – accordingly the balancing charges levied upon the tenants were not due, even at the date of the appeal.

As regards the administration charges levied by the managing agents, the Tribunal noted that these were extra charges levied by the managing agents. Therefore, it was incumbent on the Appellant to show that it was required to pay that sum to the managing agent. There had been no disclosure of the manager’s retainer for 2010, and as regards the 2011 – 2016 retainers, they did not demonstrate that the Appellant was required to pay (over and above the normal management fee) for the agent’s services in collecting rent and service charges. Further, because of the certification issue set out above, there may not have been any arrears to pursue.

As regards the 2010 service charge year, the Appellant accepted that it was never going to be able to provide more evidence of the charges levied. However, it maintained that it was for the tenant to raise a defence to the sums said to be owed, and the tenant had failed to do so. That submission was rejected by the Tribunal – where the tenant raises questions as to the basis of the charge, the burden falls on the landlord to explain what the charge is for. It is not enough for the landlord to assert that they are entitled to the sum merely because it appears on the agent’s account.

 

Caretaker's flat

See also the page dealing with reasonableness of service charges for a case dealing with whether or not it was reasonable to recover the costs of a caretaker where the intermediate landlord and the tenants agreed that it was not necessary but the head landlord insisted on it and threatened forfeiture if no caretake was installed.

 

Gilje v Charlgrove

[2001] EWCA Civ 1777

On a true construction of the lease L was not entitled to recover the notional rent of a caretakers flat. The lease was construed contra proferentum. The cost could not be considered to be moneys expended within the meaning of the lease.

Earl of Cadogan v 27/29 Sloane Gardens Ltd

[2006] 24 EG 178

In this Lands Tribunal case, HH Michael Rich QC set out the principles to be applied when deciding whether or not the notional rent for a flat occupied by a caretaker working in the property can be recovered as a service charge under the terms of the lease:

    "(i) It is for the landlord to show that a reasonable tenant would perceive that the [lease] obliged it to make the payment sought.
    (ii) Such conclusion must emerge clearly and plainly from the words used.
    (iii) Thus, if the words could reasonably be read as providing for some other circumstance, the landlord will fail to discharge the onus upon it.
    (iv) This does not, however, permit the rejection of the natural meaning of the words in their context on the basis of some other fanciful meaning or purpose, and the context may justify a 'liberal' meaning.
    (v) If the consideration of the clause leaves an ambiguity, the ambiguity will be resolved against the landlord as 'proferror'." (para 20)

In this case, one of the items of "costs expenses outgoings and matters incurred in connection with the management and running of the Building" that was described as "service charge expenditure" included "the cost of employing maintaining and providing accommodation in the building for a caretaker including an annual sum equivalent to the market rent of any accommodation provided rent-free by the Lessor .. in respect of such accommodation.". The Tribunal had no difficulty in concluding that the landlord was entitled to recover a notional rent of the caretaker's flat as part of the service charge. (para 25).

Note: Although the point did not fall for a decision in the case, the President "doubted whether a notional cost would fall within the definition of "relevant costs" in s18 of [the Landlord and Tenant Act 1985]" (para 26). If so, it will not be possible to challenge the reasonableness of such a charge under s19.

 

Credit for third party contributions

Preventing double recovery

Oliver v Sheffield City Council

[2017] EWCA Civ 225

Summary

A local authority landlord was required to give credit to leaseholders for funds received from third-parties when recovering a contribution to the cost of major works.

Facts

A flat located on a large Council-owned estate was held by a long-leaseholder (T). Major works were conducted on the whole estate, funded in part by Npower, as the Council’s commercial partner under the government’s Community Energy Savings Program (CESP). Although a certain amount of the CESP funds were attributable to works on T’s property, the Council did not allow for this in her bill for the major works. One difficulty for the Council in this regard was that the CESP funding was not applicable to the whole estate, and only related to certain works to certain properties in the areas where it did apply. The relevant covenant to pay service charges was as follows:

    “Subject (so far as applicable) to the provisions of paragraphs 16A to 16D and 18 of Schedule VI of the 1985 Act to pay to the Council from time to time as part of the Service Charge a reasonable part of the costs and expenses which the Council may from time to time incur or estimate to be incurred in carrying out repairs and improvements to the structure and exterior of the demised premises and the Building …”

T had challenged the recoverability of the major works charges on numerous grounds and had been unsuccessful before the Leasehold Valuation Tribunal. On appeal to the Upper Tribunal she was also largely unsuccessful, but she succeeded in part in relation to the CESP funding. Mr Martyn Rodger QC found that, to the extent that the Council’s expenditure on the cladding works had been funded by Npower under the CESP Scheme, that part of the cost had not been “incurred” by the Council within the meaning either of the above clause or in the relevant schedule to the Lease. The Council appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal. The lease should be interpreted, if at all possible, so that the Council should not be entitled to ‘double recovery’. The Court considered that it had three options in this regard:

  • Ascribing a limited meaning to the phrase “cost and expenses which the Council may in time to time incur” (in the clause referred to above) and the phrase “costs, expenses and outgoings incurred … by the Council” in the relevant schedule to the lease; or
  • Treating “actual costs, expenses and outgoings” in the relevant paragraph in the schedule to the lease as limited to those which leave the Council out of pocket; or
  • Treating the avoidance of double recovery as a matter to be taken into account when determining a “fair proportion” of the Council’s incurred costs, expenses and outgoings to be paid by the Lessee, under the relevant paragraph of the schedule to the lease.

Both LLJ Briggs and Longmore felt that it was artificial to construe the word ‘incur’ so as to limit it to the net costs that fell upon the lessor. They considered that the matter was best approached by a question of what was a ‘fair proportion’ of the charges incurred to be paid by the lessee. LJ Lewison disagreed. For him, the best way to approach the problem was to construct the term ‘actual costs, expenses and outgoings’ as the costs that ultimately leave the lessor out of pocket.

Comment

Although this case focussed on the construction of particular service charge provisions in the lease at hand, it has potentially wider implications. The primary submission from the respondent, that the service charge provisions should be constructed so as not to permit double recovery by the lessor, is likely to apply to the vast majority of residential leases, in the absence of a clear indication otherwise.

Further, as pointed out by LJ Briggs in his judgment, the principle has a wider application than just the CESP scheme. Double recovery scenarios could easily arise in circumstances where costs of works were recovered under the lessor’s or a third party’s insurance or where work was carried out under a builder’s guarantee. Tenants and landlords would be well advised to be alert to potential double recovery scenarios when considering service charge recovery.

 

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