Service Charge Liability - Repair vs Renewal

[MHaines]

Afternoon,

Could someone advise on the following please:

Situation:

The lease of a unit in a block of flats provides the following obligations:

(1) On the lessor - "to keep in good and substantial repair and condition the communal hallway and stairs [etc]..."

(2) On the lessee - "to pay the costs of the lessor of complying with [the above] covenant"

Question:

Noted that the covenant is to 'keep' rather than 'put' in repair and wondered how far the burden on the lessor above extends with, for example, the replacement of the stairway carpets which were soiled and damaged after the freeholder previously failed to keep them in good and substantial repair as per the lease?

[JK0]

There does not need to be a covenant to 'put' because the place was presumably okay when the lease was written. The previous lessor was in breach of the lease by not 'keeping' and the present lessor is also.

[MHaines]

The lessor has issued a SC which includes the replacement of the carpets however this was only necessary after the lessors breached the covenant to keep in repair for such a long period of time.

My question is whether taking the breach into account, but also with reference to the wording of the lease as above, whether this allows the cost of the replacement carpets to be recovered via a SC or whether the continuing breach by the lessor which allowed the damage to occur would effectively render the charge irrecoverable?

[JK0]

I don't think the fact that old lessor didn't ask you to pay up sooner will let you get off paying now. How much is the carpet per flat? If over £250, they need to do a s20 consultation.

[leaseholdanswers]

The convenant to kep in good and substantial repair is problay 8 out of 10 in the standard pf repair, and certainly allows replacement.

If however you can prove that they failed to keep it clean or protected from works, and that hastened it's end, the LVT may well limit that amount to be recovered as the cost is unfair and unreasonable.

You do need a professional to advise you and give evidence, not your local carpet fitter, on a paid basis.
Try http://www.nicfltd.org.uk/ or http://www.cfa.org.uk/

[MHaines]

It doesn't reach the S20 threshold.

My argument would be that the lessors breach of the repairing covenant to keep the carpets clean and in repair in the first place (ultimately resulting in the need for replacement) would mean that the claim for entire cost of the replacement carpets should be limited?

[MHaines]

Thankyou.

With regards to s20 consultation, what is the situation whereby one person owns a number of units in the block? Does the collective cost to the individual leaseholder (even though it's for more than one unit) invoke the s20 consultation requirement or is it based on a 'per unit' basis?

The legislation refers to the cost to a leasholder being over £250 but not sure how it would apply in the above situation?

[leaseholdanswers]

Thankyou.

With regards to s20 consultation, what is the situation whereby one person owns a number of units in the block? Does the collective cost to the individual leaseholder (even though it's for more than one unit) invoke the s20 consultation requirement or is it based on a 'per unit' basis?

The legislation refers to the cost to a leasholder being over £250 but not sure how it would apply in the above situation?

The exact wording is "In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement"

Therefore it is "any leaseholder". There may be a single lease for several flats, in which case the % would be relatively high and trigger consultation at a relatively low figure.

[Tulula]

If you can show that extra costs were incurred due to the landlord's neglect the extra costs may not be recoverable. Have a good read of the decision in Continental v White, and the other cases cited within it:

http://www.bailii.org/cgi-bin/markup...method=boolean

[leaseholdanswers]

If you can show that extra costs were incurred due to the landlord's neglect the extra costs may not be recoverable. Have a good read of the decision in Continental v White, and the other cases cited within it:

http://www.bailii.org/cgi-bin/markup...method=boolean

And if it is not mentined that old favourite Proudfoot v Hart on the repair covenant.