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Wilcock v Guinness Partnership Ltd [2019] UKUT 146 LC

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27th June 2019

Summary

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.

Facts

The Appellant holds his flat under an assured weekly tenancy from the Respondent landlord. 

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 provides:

“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.”

First instance

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.

Issues

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“.

The question 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.

Comment

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. 

Further, 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.

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