Can you suggest some relevant Case Law in respect of my dispute over the Service Charge for the replacement of a roof?

By | 05.10.2018

Reader’s E-mail:
Many thanks for your amazingly helpful, detailed and speedy response. My service charge dispute relates to the landlord’s proposed replacement of a flat roof. Based on an independent survey which I have commissioned, I believe the roof is still in reasonable condition, has a life expectancy of around 20 years and can be maintained by minor repairs. The Wandsworth London Borough Council v Griffin and Another [2000] 2 EGLR 105 case which you refer to is great and I think the principles in it could be helpfully used to support my case.

You mention that there is lots of case law relating to whether a landlord’s decision to replace a building component is a reasonable response to their repair obligations under the lease. I would be very grateful if you could point me to one or more case where the Tribunal has found that the replacement of a roof was unreasonable because it was unnecessary. Thanks to you I will already be referring to Bourne and others v London Borough of Newham [2013] and also Miss C. Waaler v London Borough of Hounslow [2015] UKUT 0017 (LC).

Are there any other cases that I could helpfully deploy to support my case at the Tribunal?

Reply from Service Charge Dispute Guide

We have attached a copy of the Decision in the LVT case of the Leaseholders of Merryweather and Brennard Court v London Borough of Islington [2012].

Whilst this case does not set a binding legal precedent, it does deal with a similar type of scenario as the one you describe in your e-mails. The Leaseholders concerned were successful in getting the Service Charge for the replacement of the roof reduced by over 75% on the basis that the full cost had not been ‘reasonably incurred’ under the terms of Section 19 (1) (a) of the Landlord and Tenant Act 1985. This case gives a good indicator of the way you can expect the First Tier Tribunal to assess your case and what types of questions are likely to come up during the hearing.

There are two points raised in this case which we would like to highlight for you:

1) The London Borough of Islington was found not to have surveyed the buildings in question, but rather used the surveys carried out on other buildings and extrapolated the findings to the roofs in question. This is actually a very common strategy on the part of local authorities carrying out repairs on a number of buildings as part of larger ‘Major Works programme’. The reason local authorities do this is that it reduces the cost of planning major works programmes – accessing roofs for a survey can be difficult and expensive. The thinking on the part of the local authority is that once scaffolding has been erected a more thorough examination can take place on the blocks which have not been surveyed and a decision made on site whether or not it is necessary to actually undertake the planned works. Problems occurs when the onsite inspection and supervision of the building is not carried out competently and the contractor simply does the work (as they have been contracted to do).

In this case, the burden of proof was placed on the Landlord to prove that the roof was beyond economic repair and needed replacing. This does not always happen, and the reason that the Landlord was required to prove their case was that the Leaseholder’s surveyor was able to cast doubt on the claim that the Landlord’s claim that the existing roof had reached the end of it useful life using the existing evidence. This tipped the ‘balance of probabilities’ in the favour of the Leaseholders, who were victorious despite having no evidence of their own in respect of the condition of the roof prior to replacement.

2) The LVT accepted that the history of minor repairs which occurred prior to the roof replacement was a good indicator of the condition of the roof. With roofs there is a tendency for there to be an ever increasing number of minor repairs carried out in the lead up to the point when the roof becomes beyond repair. More often than not these are ‘Responsive Repairs’, so called because they are carried out in response to complaints from residents about water ingress into the building. If the roof had failed, and needed replacing, you would expect there to be a pattern of ever frequent minor repairs done to the roof. In this case there was no such pattern of ever more frequent repairs and this was a very significant point for the Tribunal. This is something that you should consider in your case.

Your case, as you describe it in your e-mails, is slightly different to the one quoted above as you have a ‘two pronged’ challenge to your Service Charge liability: (A) that the works carried out do not fall within the repair covenant of your Lease, as they should be classed in whole or part as improvements and (B) if the works do fall within the repair covenant of your Lease then they have not been reasonably incurred, as the works went well beyond what was required in respect of fulfilling the Landlord’s obligations under the Lease.

These two arguments are related, but distinct. Under argument (A) you would be making the claim that the works carried out were not of a type which the Lease permits the Landlord to charge you for and that you should be charged nothing. Under argument (B) you would be making the claim that the Service Charge liability should be reduced to the amount which would have been incurred had your Landlord acted reasonably.

In the Leaseholders of Merryweather and Brennard Court v London Borough of Islington [2012] case there was little discussion of the terms of the Lease and relevant case law because the focus was on the issue of whether a full replacement of the roof was necessary. The case involved the Leaseholders making argument (B) as outlined above.

In relation to argument (A) you may benefit from considering what statements your Landlord has made in the past about their reasons for undertaking the work. On the Section 20 notice you should have received for the works your Landlord will have given ‘reasons’ for why the works needed to be undertaken. If the Landlord has stated any other reason for undertaking the work other needing to repair the roof, the Tribunal will find it helpful for you to highlight this to them. If the reasons for work were improving the insulation or meeting the Decent Homes Standard then this would add weight your claim that the works are to be understood as an improvement. If you carry out a repair this presupposes something being in disrepair. If you can show that your Landlord’s principal reason for carrying out the work is addressing concerns about heating bills or meeting a government standard, when it should be fulfilling the repair obligations in your lease, then this will be helpful to your case.

We wish you the best of luck with your Application, and do please get in touch when the Decision is made to let us know how you got on.