Wilcock v Guinness Partnership Ltd  UKUT 146 LC
27th June 2019
The Respondent landlord could not recover sums spent on removing rubbish from the car park in circumstances in which there was a schedule of services to be provided in the tenancy agreement which made no mention of the car park.
The Appellant holds his flat under an assured weekly tenancy from the Respondent
The Appellant flat is a first-floor flat
in a building comprising of eight flats.
Each first floor flat has an entrance to the rear of the building. There is also a car park to the rear of the building.
The building’s car park became a popular
site for fly-tipping.
The Respondent decided to undertake the
removal of bulky rubbish from the car park and put the cost of doing so through
the service charge.
The Appellant questioned whether the cost of this could be put through
the service charge under Section 27A.
The tenancy agreement, so far as
relevant, stated as follows:
Clause 1(3) of the tenancy agreement
“The Association shall provide the services in connection with the Premises which are itemised in the
attached schedule for which the Tenant shall pay a Service Charge.
- The Service Charge will be variable and reviewed annually
when the net rent is reviewed as described in Clause 4 of this Agreement.
- At that time the Service Charge may be increased or
decreased. This will be done according to the costs incurred during the Service
Charge account period in the provision of services and any known or reasonably
anticipated increase in costs.
Annually the Association will consult with tenants
regarding the services provided.
Any increase, or decrease will be notified by the
Association to the tenant in writing by giving at least four weeks’ notice.”
The schedule to the tenancy agreement
was entitled Service Charge Schedule and provided as follows:
“The Landlord shall provide the following services in
connection with the above property address for which the Tenant shall pay a
Service Charge as stated on page 1 of this Agreement, to be included in the Rent.
DETAILS OF SERVICES
GARDEN MAINTENANCE LIGHTING (STAIRWAYS)
LANDLORDS LIGHTING EXTERNAL”
Further, the tenancy agreement included
an obligation on the part of the Respondent 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 decided that the Respondents costs
of removing the bulk rubbish could be put through the service charge on the
basis that the car park formed part of the common parts and because the lease
made provision for a variable service charge under Clause 1(3)(b).
The FTT rejected the argument that, because
the tenants did not have exclusive use of the car park, they ought not to pay
for the rubbish removal.
Permission to appeal was given by the Deputy President. Permission to appeal was given on the basis that the tenancy agreement made provision in the schedule for the services to be provided by the Respondent to be enumerated. These items did not include the maintenance or cleaning of the common parts.
Could the cost of the removal of the rubbish from the car park be put through the service charge in view of the fact that such a cost was not set out in the schedule of recoverable items?
Decision on appeal
By agreement, the matter was determined upon written submissions. The Respondent argued that it charged the
Appellant for the removal of the rubbish in accordance with Clause 1(3)(b)
which permits it to increase the service charge. Further, the Respondent made a number of
irrelevant accusations that the Appellant had been hoarding items at the property.
The UT held that the tenancy agreement did not
confer upon the Respondent a right to add to the services which were capable of
forming part of the service charge.
Therefore, the Respondent was not entitled to recover the cost of the
removal of rubbish from the car park through the service charge.
This is because the tenancy agreement makes
clear that the landlord is to provide the services as set out in schedule.
Those services did not include the maintenance of the car park or other common
parts. It was not argued that the bulk rubbish removal formed part of the “garden maintenance“.
therefore remained as to whether the cost was recoverable as part of a variable
administration clause in the lease. The
UT disagreed with the FTT and held that, while the lease allowed the increase
or decrease in the service charge, this did not serve the expand the
categories of services which the Respondent could charge for as itemised in the
schedule to the lease.
The appeal was allowed.
The outcome of this appeal is unsurprising. The tenancy agreement was clear that an increase or decrease in the amount payable for service charges was permissible. There was nothing in the tenancy agreement which would serve to expand the categories of services capable of recovery through the service charge. There was no “sweeping up” provision.
the enumeration of the types of recoverable services in the schedule to the
tenancy agreement rendered it even more inappropriate to treat the relevant
clause as a sweeping up provision.
Expertise: Service Charges
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