The Upper Tribunal (Lands Chamber) has recently decided that the First-Tier Tribunal (Property Chamber) was wrong to conclude that the cost of lift maintenance and repairs in the common parts of a block of flats could not be recovered through the service charge.
In this case, the Upper Tribunal had to consider whether section 11 of the Landlord and Tenant Act 1954 (Section 11) could be used to prevent a landlord from being able to claim service charge contributions from assured tenants towards the cost of the lift works.
Section 11 implies an absolute obligation into all short tenancy agreements (generally speaking for a fixed term of less than seven years, with limited exceptions) upon landlords to carry out repairs and to keep the exterior, structure and utilities installations of the rental property/building in working order. Landlords must bear the cost of such works themselves and are not allowed to pass them on to their tenants through, for example, the service charge. This implied obligation cannot be excluded even if the parties have agreed to do so.
In making his case the tenant, Mr Cox, referred the Upper Tribunal to two expert advice agencies that specifically noted lifts on their websites as falling within the implied Section 11 obligation. The tribunal disagreed with the agencies’ approaches however, stating that they went further than necessary.
The Upper Tribunal’s interpretation was clear – the lift was excluded from the scope of Section 11 despite falling within the common parts. In order for a common part to be included within the scope of Section 11, it must also form part of the structure of the building. In the Upper Tribunal’s view, lifts are not usually thought of as part of the structure of a building.
The Upper Tribunal acknowledged that the lift was an installation. However, it was still excluded from the scope of Section 11 because it was not an installation for the supply of services such as water and gas or to heat up space and water.
The implied landlord’s obligation in Section 11 therefore did not extend to the lift and Mr Cox was responsible for contributing towards the cost of the lift works.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Rubilee Stockley
