Case Law on Applying to Vary the Terms of a Lease

This section of our Case Law Library looks at cases related to:

• The circumstances under which a Tribunal or Court may order that the terms of a lease be varied.

• The effect that the variation of a Lease has on Service Charge liabilities, past or present

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Applications to Rectify an Alleged Error in a Lease:

Campbell v Daejan Properties Limited [2012] EWCA Civ 1503

This case was an Appeal against an earlier decision by the High Court that a Lease should be interpreted as though it contained other wording than that which was actually written. The England and Wales Court of Appeal overturned the decision of the High Court and set out very clear guidance on when a Court or Tribunal is entitled to interpret a Lease as though it contained wording other than that written in the Lease.

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Variation of a Lease to allow a Landlord to Recover Costs:

Cleary v Lakeside Developments Limited [2011] UKUT 264 (LC)

Case where the Upper Tribunal decided that Section 35 of the Landlord and Tenant Act 1987 did not permit an application to be made by a Landlord to vary the terms of the Lease to include a clause allowing the recovery of managing agents fee in order to align the Service Charges of the relevant Leaseholders with the other Leaseholder in the block who paid the charge.

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Variation of a Lease in respect of the Apportionment Method:

Morgan and another v Fletcher and others LRX/81/2008

In this case the Upper Tribunal decided that application to vary the terms of the lease in respect of the apportionment method could only be made under Section 35 of the Landlord and Tenant Act 1987 to correct a situation where the collective shares paid by the Leaseholders was less than, or exceeded, 100%. An application could not be made for the purpose of reapportioning the shares each individual Leaseholder paid.

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Variation of a Lease in respect of Repair Obligations:

Gianfrancesco v Haughton – LRX/10/2007

In this case the Lands Tribunal stated that the decision as to whether a Lease makes unsatisfactory provision for one of the matters referred to in Section 35 of the Landlord and Tenant Act 1987 depends on the circumstances of the case. It also decided that a lease does not fail to make satisfactory provision “simply because it could have been better or more explicitly drafted“.

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Applications under Section 37 of the Landlord and Tenant Act 1987:

Marshall Dixon and others v Wellington Close Management Ltd [2012] UKUT 95 (LC)

Section 37 of the Landlord and Tenant Act 1987 states that an application to vary Leases may only be made under that section if, in a building or estate of more than 8 or more affected Leaseholders, more than 75% support the application and no more than 10% oppose it. In this case the Upper Tribunal decided that these qualifying conditions must be assessed at the time of the Application, and that subsequent expressions of support or opposition could not be taken into account in respect of that particular application..

Shellpoint and another v Barnett and others [2012] UKUT 375 (LC)

A case where the Upper Tribunal carefully considered whether the proposed variation to the Lease met the requirement under Section 37 that “The grounds on which an application may be made under this section are that the object to be achieved by the variation cannot be satisfactorily achieved unless all the leases are varied to the same effect“. Rather unsurprisingly, the Upper Tribunal decided that introducing a clause which allowed the Landlord wider powers to recover legal and management fees was not required to achieve the objective of changing the heating system from a communal boiler to individual boilers, and the proposed variation was not granted.

Simon v St Mildred’s Court Residents Association Ltd [2015] UKUT 0508 (LC)

Decision by the Upper Tribunal that in order for a resident to have been taken to have given their consent to the variation of a lease for the purposes of Section 37 of the Landlord and Tenant Act 1987 they must have first been given the opportunity to consider and consent to the proposed amendments to the wording of their lease.

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Restrictions on making an Order to Vary a Lease

Mawhood & Anor v Sinclair Gardens Investments (Kensington) Ltd LRX/59/2007

Section 38 (6) of the Landlord and Tenant Act 1987 states that an order to vary a lease may not be made if it is unreasonable to do so in the circumstances in which the application was made. In this case the Lands Tribunal decided that it was unreasonable to make certain variations to the leases in question because of an ongoing application by the leases to exercise their right to enfranchisement under the  Leasehold Reform, Housing and Urban Development Act 1993