Southwark LBC v Lessees of the St Saviours Estate [2017]:

Whether a fixture can be regarded as being in disrepair as a result of its modification

The background

Eighty Respondents to this appeal held long leases of flats on the St Saviours Estate, granted by the local authority Appellant freeholder. The Appellant covenanted under the leases to keep the blocks of flats in repair, including the front entrance doors and all other communal and retained parts of the buildings.

The Appellant carried out significant repair works to each block of flats during the year from March 2013 to April 2014, replacing front entrance doors, other communal doors and and fire safety works including replacement of cupboard doors and refuse hatches. Some doors were replaced because they did not comply with fire safety requirements but further assessments were not carried out before works were undertaken.

The law

The Respondents brought their claim under s.27A of the Landlord and Tenant Act 1985, setting out the grounds for determination of service charge.

At First-tier Tribunal, the Respondents claimed that the costs of replacement works were not payable. It was agreed that the Appellant could recover costs for replacement only where doors were in disrepair. Discussion then centred on the doors which had been modified by some tenants, for example, the insertion of locks of letterboxes. These doors could no longer provide the fire resistance required, resulting in them being deemed to be in disrepair. The Respondents agreed to some degree, but expert assessment was required to determine whether or not their modifications resulted in a loss of fire resistance. The Appellant’s surveyor was not a fire resistance expert and his evidence was rejected.

The FTT therefore held that the costs of replacement works were only recoverable where the Appellant’s own fire risk assessments required replacement of doors. The Appellant was permitted to recover 50% of the costs of other fire resistance works; some works may not have been necessary if a full survey had been carried out.

The Appellant appealed to Upper Tribunal. It argued that the FTT had wrongly concluded that a modified entrance door could still be considered to be in repair, and that the 50% recovery ruling was arbitrary.

The decision

The appeal was dismissed. The UT concluded that a door no longer able to provide the required amount of fire resistance was in disrepair, and the FTT had been right to query whether there was sufficient evidence to support the view that doors could not provide the requisite fire resistance.

Further, the FTT’s rejection of the surveyor’s evidence was correct as he did not have the appropriate expertise. The FTT’s decision to allow the Appellant to recover 50% of its costs of carrying out other fire resistance works was adequate and had been based on the evidence put before it.

JB Leitchccomments on the decision:

“This case is a warning to landlords of the importance in obtaining professional assessments and supporting documentation where significant expenditure is to be incurred in carrying out repair works. The lack of professional evidence in Southwark resulted in the Appellant only recovering 50% of its costs. Further, the case is useful guidance for Property Managers where entrance doors to individual units have been modified; these modifications may affect fire resistance and it is advisable to assess this properly.”