Recovery of sums to clear a car park of leasehold flats
In Wilcock v Guinness Partnership Ltd , the appellant occupied a flat under an assured weekly tenancy. The building contained 8 flats in total. First floor flats were accessed through the rear of the building where there was also a car park which was used frequently for fly-tipping.
The landlord cleared the car park of bulky waste and wished to recover the cost of this through the service charge. The appellant brought a S27A application in the First-tier Tribunal to determine whether this sum was payable.
The tenancy agreement contained a schedule itemising the services to be provided by the landlord. Amongst other terms, the agreement stated that the landlord was to ‘take reasonable care to keep the common entrances, halls, stairways, lifts, passageways, rubbish chutes and any other common parts including the electric lighting, in reasonable repair and fit for use by the Tenant and other occupiers and visitors to the Premises’.
The FTT found that the car park formed part of the common parts of the building and that rubbish clearance costs could be put through the service charge.
The Upper Tribunal found that the landlord did not have a right to add further services to those recoverable through the service charge and it could not therefore recover the cost of rubbish removal for the car park. The agreement did permit the service charge to be increased or decreased, but it did not allow for the addition of further services.
The schedule to the tenancy agreement made no reference to maintenance of the car park or other common areas and rubbish removal did not constitute ‘garden maintenance’. The tenant’s appeal was therefore allowed.
Advice and action for landlords
Landlords are well advised following this decision to ensure that services specified in agreements to be delivered are all-encompassing so far as possible. The omission of reference to the car park in this case resulted in the decision in favour of the tenant.
It is certainly recommended that all leases and tenancy agreements contain ‘sweeping up’ provisions, allowing a landlord to add to the services delivered by it contractually.
The Upper Tribunal found that, through the absence of any ‘sweeping up’ provision in the tenancy agreement, the landlord did not have a right to add further services to those recoverable through the service charge.