Question 1

Lease lacks any reference to windows

Accepted Answer

Can you help us see through the problem of our leases’ apparent absence of any mention of who is responsible for the maintenance of the windows in our block? The result of the lack of clarity is that over the years the windows have not been maintained. Many need repairing or replacing, and some leaseholders have replaced theirs off their own bat. There are arguments as to whether it is the freeholder or leaseholder who should pay for the repairs. Can you shed any light on the matter, and how we could deal with the problem The FPRA replies: I have had a look through your specimen lease and can see no reference at all in it to windows. If the Management Company wishes to replace them, then before it can do so, and before it can charge for them, one needs to be sure that the windows are indeed its responsibility. What is included in the leases of the individual flats is set out in clause 2 of your lease. The relevant part reads “one half (severed medially) of the walls separating the demised flat from the communal parts of the building the reserved parts of the structure and from other flats within such upper and lower limits”. This is a little clearer if one compares it to what is included in the “reserved parts of the structure”. This reads (part of cl 1): “the external walls one half severed medially the foundations roof of the buildings and the supporting beams and other supports of such roof”. The lease is completely silent as to whether the windows are included as part of the external walls or not. Either view is possible. One could argue that the “walls” are what are made of brick or stone, so the windows cannot be part of the “walls”. On the other hand one could argue that the “external walls” are intended here to mean the “outer skin” of the building. The leading case on this would agree with the proposition that “external walls” would not include windows, but judges have increasingly been willing to try to read leases so that they make sense. The problem here, however, is that the reference to “sever[ing] medially” makes more sense when applied to cavity brick walls than to windows, and might lead a judge to take the view that it could not therefore have been intended that the windows should be included as part of the “external walls”. If the windows do form part of the “reserved parts of the structure” then they belong to the Landlord, can be repaired by the Management Company, and the cost can be passed on to the leaseholders. If they form part of the property included in the individual leases, then they belong to the leaseholders, and it is up to them to repair or replace them at their own expense. Do you have a coloured copy of the plan to your lease? It is just possible that the red edging on the plan shows sufficiently clearly whether the windows are included or not, but I fear that this is unlikely. If the plan does not resolve the issue, then I fear that there is a real danger here that some leaseholders may refuse to pay the service charge for the replacement of the windows on the basis that it is not the Management Company’s duty to do this. If it is not, then the charge cannot validly be passed on via the service charge. I think it is very unlikely that any solicitor or barrister would feel able to advise you with any certainty of what a court or tribunal would decide on how your leases were to be interpreted. I fear that the only safe course of action here is for the Company to make an application to the Leasehold Valuation Tribunal under s. 27A(3) of the Landlord and Tenant Act 1985 for a prospective ruling as to whether the proposed service charge for the replacement of the windows is reasonable or not. Until the passing of the Commonhold and Leasehold Reform Act 2002 the LVTs would decline to deal with matters involving the interpretation of a lease (rather than the reasonableness per se of a service charge), but s.27A has given them this power. If the LVT interprets the lease as saying that the windows are included in the “external walls” then the Company can cover the cost via the service charge. If the LVT, on the other hand, says that they are not so included, then it is up to each leaseholder to replace his or her own windows. If the Company makes an application to the LVT, then it may be that all the leaseholders will sign something to say that they agree to the windows forming part of the external walls and therefore within the scope of the service charge – or at least say that they would not object to it. If this is the case then it may be possible for the LVT to make a ruling on reading the paperwork, without there to be a need for a hearing. This ruling would then still bind all the leaseholders. If the replacement of the windows is a matter for the Company, then you can compel everyone to have their windows replaced if the Board has decided that this is necessary. This is the case even if some leaseholders have already taken it upon themselves to replace their own windows “off their own bat”, and windows would therefore have to be replaced a second time. You would simply levy the cost via the ordinary service charge. The lease does not specify any time for payment so I would say that it is payable on demand. If you need to be sure that the money is in before you put in hand the order for the windows, then it would seem essential that you first get the money in by setting up a “sinking fund” under clause 3(g)(iii) of the lease to recover the cost first. This may cause some complications, in that I think you would need to get the money in first (without going through the consultation procedure). When you are in funds, you would then need to consult on the specific contractor that you are going to engage, to comply with s.20. Before you do either, I think you need to get a ruling that these works are indeed within the scope of the service charge. If the LVT ruled that the replacement of the windows did not fall within the responsibility of the Company, and therefore within the scope of the service charge, the issue would then arise of whether the leases as they stood made satisfactory provision for the repair of the block. If each leaseholder can be compelled to replace his or her windows, this may not be ideal, but it may be adequate. But if it is impracticable for each leaseholder to replace his own windows – if, for example, it was not possible for the windows to be replaced from the inside – then the separate question would arise of whether it was appropriate to have the leases varied so as to provide for the windows to be included in the main structure, and repairable by the Company.

Question 2

Lease lacks any reference to windows

Accepted Answer

Can you help us see through the problem of our leases’ apparent absence of any mention of who is responsible for the maintenance of the windows in our block? The result of the lack of clarity is that over the years the windows have not been maintained. Many need repairing or replacing, and some leaseholders have replaced theirs off their own bat. There are arguments as to whether it is the freeholder or leaseholder who should pay for the repairs. Can you shed any light on the matter, and how we could deal with the problem The FPRA replies: I have had a look through your specimen lease and can see no reference at all in it to windows. If the Management Company wishes to replace them, then before it can do so, and before it can charge for them, one needs to be sure that the windows are indeed its responsibility. What is included in the leases of the individual flats is set out in clause 2 of your lease. The relevant part reads “one half (severed medially) of the walls separating the demised flat from the communal parts of the building the reserved parts of the structure and from other flats within such upper and lower limits”. This is a little clearer if one compares it to what is included in the “reserved parts of the structure”. This reads (part of cl 1): “the external walls one half severed medially the foundations roof of the buildings and the supporting beams and other supports of such roof”. The lease is completely silent as to whether the windows are included as part of the external walls or not. Either view is possible. One could argue that the “walls” are what are made of brick or stone, so the windows cannot be part of the “walls”. On the other hand one could argue that the “external walls” are intended here to mean the “outer skin” of the building. The leading case on this would agree with the proposition that “external walls” would not include windows, but judges have increasingly been willing to try to read leases so that they make sense. The problem here, however, is that the reference to “sever[ing] medially” makes more sense when applied to cavity brick walls than to windows, and might lead a judge to take the view that it could not therefore have been intended that the windows should be included as part of the “external walls”. If the windows do form part of the “reserved parts of the structure” then they belong to the Landlord, can be repaired by the Management Company, and the cost can be passed on to the leaseholders. If they form part of the property included in the individual leases, then they belong to the leaseholders, and it is up to them to repair or replace them at their own expense. Do you have a coloured copy of the plan to your lease? It is just possible that the red edging on the plan shows sufficiently clearly whether the windows are included or not, but I fear that this is unlikely. If the plan does not resolve the issue, then I fear that there is a real danger here that some leaseholders may refuse to pay the service charge for the replacement of the windows on the basis that it is not the Management Company’s duty to do this. If it is not, then the charge cannot validly be passed on via the service charge. I think it is very unlikely that any solicitor or barrister would feel able to advise you with any certainty of what a court or tribunal would decide on how your leases were to be interpreted. I fear that the only safe course of action here is for the Company to make an application to the Leasehold Valuation Tribunal under s. 27A(3) of the Landlord and Tenant Act 1985 for a prospective ruling as to whether the proposed service charge for the replacement of the windows is reasonable or not. Until the passing of the Commonhold and Leasehold Reform Act 2002 the LVTs would decline to deal with matters involving the interpretation of a lease (rather than the reasonableness per se of a service charge), but s.27A has given them this power. If the LVT interprets the lease as saying that the windows are included in the “external walls” then the Company can cover the cost via the service charge. If the LVT, on the other hand, says that they are not so included, then it is up to each leaseholder to replace his or her own windows. If the Company makes an application to the LVT, then it may be that all the leaseholders will sign something to say that they agree to the windows forming part of the external walls and therefore within the scope of the service charge – or at least say that they would not object to it. If this is the case then it may be possible for the LVT to make a ruling on reading the paperwork, without there to be a need for a hearing. This ruling would then still bind all the leaseholders. If the replacement of the windows is a matter for the Company, then you can compel everyone to have their windows replaced if the Board has decided that this is necessary. This is the case even if some leaseholders have already taken it upon themselves to replace their own windows “off their own bat”, and windows would therefore have to be replaced a second time. You would simply levy the cost via the ordinary service charge. The lease does not specify any time for payment so I would say that it is payable on demand. If you need to be sure that the money is in before you put in hand the order for the windows, then it would seem essential that you first get the money in by setting up a “sinking fund” under clause 3(g)(iii) of the lease to recover the cost first. This may cause some complications, in that I think you would need to get the money in first (without going through the consultation procedure). When you are in funds, you would then need to consult on the specific contractor that you are going to engage, to comply with s.20. Before you do either, I think you need to get a ruling that these works are indeed within the scope of the service charge. If the LVT ruled that the replacement of the windows did not fall within the responsibility of the Company, and therefore within the scope of the service charge, the issue would then arise of whether the leases as they stood made satisfactory provision for the repair of the block. If each leaseholder can be compelled to replace his or her windows, this may not be ideal, but it may be adequate. But if it is impracticable for each leaseholder to replace his own windows – if, for example, it was not possible for the windows to be replaced from the inside – then the separate question would arise of whether it was appropriate to have the leases varied so as to provide for the windows to be included in the main structure, and repairable by the Company.

Lease lacks any reference to windows

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