Most disrepair cases concern landlords accused of doing too little to fix hazardous conditions and keep properties in a suitable state.

Equally, when the landlords of leasehold properties carry out works that are not seen as necessary, disputes can arise over who should pay and how much.

If the landlord tries to recover the cost of such works via service charges levied against leaseholders, either side may apply to the First-tier Tribunal (Property Chamber) or the County Court to resolve the matter.

In Southwark Council v Various Lessees of the St Saviours Estate [2017] UKUT 10 (LC), 80 right-to-buy leaseholders brought an application in the Tribunal against the landlord, disputing increases to their service charges following communal works to their block of flats.

The tenants argued that the replacement of the front doors and communal fire doors amounted to improvements (not repairs that the landlord was obliged to do under the leases) and therefore the landlord could not recover the costs of such works via service charges. Alternatively, the cost of the works were too high and not reasonable (as required by section 19 of the Landlord and Tenant Act 1985) and should not be recovered in full.

The tenants won. The Tribunal found that the landlord failed to make a thorough inspection of whether the doors were in disrepair and whether relevant fire safety standards were met. There were no contemporary notes taken at the time of the landlord’s inspection and the inspector had no expertise in fire safety standards.

On the landlord’s appeal, the Upper Tribunal distinguished between types of disrepair (such as a broken window), which could be proved by photographs alone, and other types of disrepair that were less readily proven (such as fire safety compliance).

Proving disrepair in this case required “reasoning or rationale or explanation, possibly supported by contemporaneous notes,” as well as details of the inspector’s “relevant expertise and understanding” used to inform their conclusions (§ 29). Neither of these requirements were met, so Southwark’s appeal was dismissed.

Landlords seeking to carry out wholesale repairs who want to recover the costs via service charges are advised to obtain a thorough assessment report from a qualified expert that explains the disrepair and justifies the proposed method/s of repair. Such a report should include the results of any relevant tests used by the expert.

Other points of significance

After reviewing the case law (at §§ 17 to 21), the UT made some common-sense observations on the duty of Tribunals to give adequate reasons for their decisions (at § 24):

Whilst some tribunals might have more fully set out the [disrepair] test and recited or summarised the material authorities, where the test is not in dispute it in my judgment is not necessary so to do. Indeed, where, as here, the test can be succinctly and uncontroversially stated and understood by the parties, the setting out of the test at any greater length would have served no purpose and been otiose.

Where, as in this case, the evidence of both parties is unclear, the Property Tribunal is entitled to rely on its own knowledge and expertise, subject to the important qualification that it should inform the parties of its view and provide them with an opportunity for comment during the hearing:

Generally, it is the function of the FtT to reach a decision on the basis of the available evidence. Sometimes, during the course of evidence or submissions, it appears to the tribunal from its own knowledge or expertise that methodology or costs figures are open to question or challenge, in which case it is appropriate for that to be ventilated for comment by those appearing before it. But that is quite different from the situation where, as here, the evidence having closed and the hearing concluded, the tribunal withdraws to deliberate and evaluate the evidence and make its decision. At that stage, the tribunal is entitled to take a broad brush, robust approach to conclude, as here, that only 50% should be allowed. (§ 58)

If you’ve got a service charges or landlord and tenant dispute and would like advice or assistance from an experienced lawyer, please contact me using the form below, or call 0207 421 8000.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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