Question 1

Stopcocks and Parking

Accepted Answer

Q: We would greatly appreciate it if you could advise us on a couple of matters. In the main, the water stopcocks for the flats in our block are located in secure cupboards in the communal area on each landing. This is where the water risers are situated but these cupboards can only be accessed by the landlord. Stopcock taps are accessible from the outside of the cupboard but many of them have become jammed. We have asked the landlord if they could be serviced and also labelled, so that we can easily identify our own, should the need arise to use them. However, we have been told that it is the responsibility of the individual leaseholder to maintain their own. As we are not responsible for communal areas, this doesn't seem (to us) to be right and we would therefore welcome your thoughts on the matter. We would also like some advice regarding leaseholders who have more than one vehicle. At the moment parking is not often a problem. The lease appears to state that each flat has the use of a single space or garage. This would imply that those leaseholders with more than one vehicle should be restricted to one parking space. We are finding that we now have a few leaseholders with more than one vehicle. Should this continue, there could well be a problem in the future, and it would be good to know exactly where we stand. FPRA Chairman Bob Smytherman replies: I will ask the office to refer this to our Legal Advisor Dr Nick Roberts for some legal clarity about these issues following a review of your lease. It's interesting that you think Southern Water as the supplier may have the keys to the stopcock cupboard - this would be unusual and certainly worth checking for sure as this would suggest they may well be responsible.? I still feel the most likely outcome would be for the landlord / agent to have responsibility which would be chargeable to the service charge? Although it's not unusual for one flat to be given access for practical reasons, it's difficult to see how the leaseholders themselves can be held responsible when the reason why they need to be serviced is they have had no access to them to carry out the service themselves? The parking issue again will require some legal clarity. It would be more straightforward if the lease for each flat included a designated space or garage and the maintenance of these were included , sadly this is not always clear with every lease so we will ask Nick for a legal review of this for you. Given your block is included in a controlled parking scheme on the street it is more difficult for residents with additional vehicles therefore you may wish to consider some element of control such as gates/barriers (subject to the lease). This can be very difficult for visitor access although often popular with residents as this is good for security. A simpler measure is to operate your own controlled parking arrangements although I would strongly recommend using the services of a reputable Approved Operator Scheme operator rather than undertake this yourself as this can cause a tension with enforcement. FPRA Legal Adviser Nick Roberts replies: Bob Smytherman has copied me in to his replies to you so that I am aware of what he has said to date. I shall let you have my legal opinion on your leases so that Bob can advise further on some of the practical aspects of what you need to do. I have had a look at the copy lease supplied, and I am afraid that I think the managing agents are correct in saying that the stopcocks etc. are the responsibility of the individual leaseholders. It is easy to fall into the trap of thinking that everything outside an individual flat is part of the common parts and so the responsibility of the ground landlord (and therefore the managing agents) but this is not quite what your lease says. Clause 1 on page 1 does indeed begin by referring to ‘the Demised Flat’ by reference to the lease plan, but it goes on to say that ‘the Demised Flat shall include.....(iii) all cisterns tanks sewers drains pipes cables wires ducts conduits vents installations apparatus and service media used solely for the purpose of the Demised Flat but no others’. What this means is that if any pipe, drain, cable etc. serves more than one flat then it is NOT the responsibility of the individual leaseholder (and so forms part of the common parts) but once a pipe, drain or cable is serving only one flat, then it is the responsibility of that flat owner – even if it is situated physically outside the flat. I do not see any scope for argument on this. As I understand you, the meters, stopcocks, etc., each serve only one flat ( a communal meter serving all the flats or a group of flats would clearly still be part of the common parts). Although nothing is said about leaseholders being entitled to have access to the service cupboards, it would seem to me that the ground landlord cannot have it both ways. If the stopcocks and meters (and the meters would clearly fall within the description of ‘installations’ or ‘apparatus’) then commonsense must surely dictate that you should have access to them. I have little doubt that a court or tribunal would imply this right into a lease if necessary. With regard to parking, the lease refers to the flat as having a ‘garage’ or ‘parking space’ but rather oddly ‘the Tenant’s Garage’ is deemed to mean either of these (clause 2(b) on p. 3) and the lease does not state which it is (perhaps this is just so that the wording of the lease can be standard, whether it includes a garage or a parking space). Whether a garage or a parking space is allocated it is included in the lease so it actually belongs to the individual leaseholder (in some leases, but not yours, the whole parking area remains part of the common parts for the purposes of resurfacing, etc., but leaseholders are given a right to park in a designated space). If only garages are indicated on the lease plan, and those leaseholders who have been given an allocated ‘concrete base’ have nothing shown on their lease plan then this would seem to me to be a mistake, and I am surprised that it was not picked up by the solicitors for the purchasers when the leases were first granted. If a garage (or a parking space) is actually included in the lease then this should not only be shown on the lease, but it also ought to have been picked up by the Land Registry when the lease was first registered, as they would then need to show not only the flat but also the garage or parking space on the official filed plan to the leasehold title of the flat. It would be very odd for the Land Registry not to have queried the position if a lease referred to a parking space but then did not appear to show one. The rights that go along with each Flat are set out in the First Schedule. The right ‘to go pass and repass with or without vehicles over and along the access roads ....etc’ (Clause 1(a) in the First Schedule: p13) means what it says and does not give leaseholders any rights to park on those roads. Clause 1(f) gives the right ‘to use the Visitors Car Parking Area forthe temporary parking of private motor vehicles belonging to visitors to the Development’. The Visitors Car Parking Area is defined at 2(h) on Clause 3, and the landlord reserves some right to to designate alternative areas to those indicated on the lease plan. As Bob has indicated, references to visitors’ car parking spaces can be the subject of argument: if someone has a boyfriend or girlfriend move in are they then a visitor? What if they spend only the weekends at the flat? Where does one draw the line? The reference to ‘temporary parking’ would suggest to me that it does not entitle a ‘permanent’ visitor to monopolise a temporary visitors’ car parking space. You may, as Bob says, have to do more to regulate parking. Fortunately Clause 14 of the Fourth Schedule (at the very end of the lease) gives the Landlor power to make further rules and regulations which could certainly include the regulation of the use of visitors’ car parking spaces. It is generally accepted that such regulations can regulate and supplement the rights granted by the lease, but not actually remove them. The clause here seems in fact to go slightly further and allow the Landlord to impose regulations in ‘substitution’ for those included in the lease, though I think it might be implied that e.g. to remove visitors’ parking rights entirely might be going too far. It would, however, clearly give the managing agents the power to come up with some reasonable definition of what amounts to ‘temporary parking’. Bob is able to offer useful experience of how regulation of visitors’ parking might work. I hope that this is useful. It may be that it is necessary to investigate why those who were intended to have a designated parking space appear not to have one, though as it would require detailed consideration of all the leases or counterpart leases and all the Land Registry Title plans I do not think I would be in a position to assist on this. [Submitted September 2016]

Question 2

Stopcocks and Parking

Accepted Answer

Q: We would greatly appreciate it if you could advise us on a couple of matters. In the main, the water stopcocks for the flats in our block are located in secure cupboards in the communal area on each landing. This is where the water risers are situated but these cupboards can only be accessed by the landlord. Stopcock taps are accessible from the outside of the cupboard but many of them have become jammed. We have asked the landlord if they could be serviced and also labelled, so that we can easily identify our own, should the need arise to use them. However, we have been told that it is the responsibility of the individual leaseholder to maintain their own. As we are not responsible for communal areas, this doesn't seem (to us) to be right and we would therefore welcome your thoughts on the matter. We would also like some advice regarding leaseholders who have more than one vehicle. At the moment parking is not often a problem. The lease appears to state that each flat has the use of a single space or garage. This would imply that those leaseholders with more than one vehicle should be restricted to one parking space. We are finding that we now have a few leaseholders with more than one vehicle. Should this continue, there could well be a problem in the future, and it would be good to know exactly where we stand. FPRA Chairman Bob Smytherman replies: I will ask the office to refer this to our Legal Advisor Dr Nick Roberts for some legal clarity about these issues following a review of your lease. It's interesting that you think Southern Water as the supplier may have the keys to the stopcock cupboard - this would be unusual and certainly worth checking for sure as this would suggest they may well be responsible.? I still feel the most likely outcome would be for the landlord / agent to have responsibility which would be chargeable to the service charge? Although it's not unusual for one flat to be given access for practical reasons, it's difficult to see how the leaseholders themselves can be held responsible when the reason why they need to be serviced is they have had no access to them to carry out the service themselves? The parking issue again will require some legal clarity. It would be more straightforward if the lease for each flat included a designated space or garage and the maintenance of these were included , sadly this is not always clear with every lease so we will ask Nick for a legal review of this for you. Given your block is included in a controlled parking scheme on the street it is more difficult for residents with additional vehicles therefore you may wish to consider some element of control such as gates/barriers (subject to the lease). This can be very difficult for visitor access although often popular with residents as this is good for security. A simpler measure is to operate your own controlled parking arrangements although I would strongly recommend using the services of a reputable Approved Operator Scheme operator rather than undertake this yourself as this can cause a tension with enforcement. FPRA Legal Adviser Nick Roberts replies: Bob Smytherman has copied me in to his replies to you so that I am aware of what he has said to date. I shall let you have my legal opinion on your leases so that Bob can advise further on some of the practical aspects of what you need to do. I have had a look at the copy lease supplied, and I am afraid that I think the managing agents are correct in saying that the stopcocks etc. are the responsibility of the individual leaseholders. It is easy to fall into the trap of thinking that everything outside an individual flat is part of the common parts and so the responsibility of the ground landlord (and therefore the managing agents) but this is not quite what your lease says. Clause 1 on page 1 does indeed begin by referring to ‘the Demised Flat’ by reference to the lease plan, but it goes on to say that ‘the Demised Flat shall include.....(iii) all cisterns tanks sewers drains pipes cables wires ducts conduits vents installations apparatus and service media used solely for the purpose of the Demised Flat but no others’. What this means is that if any pipe, drain, cable etc. serves more than one flat then it is NOT the responsibility of the individual leaseholder (and so forms part of the common parts) but once a pipe, drain or cable is serving only one flat, then it is the responsibility of that flat owner – even if it is situated physically outside the flat. I do not see any scope for argument on this. As I understand you, the meters, stopcocks, etc., each serve only one flat ( a communal meter serving all the flats or a group of flats would clearly still be part of the common parts). Although nothing is said about leaseholders being entitled to have access to the service cupboards, it would seem to me that the ground landlord cannot have it both ways. If the stopcocks and meters (and the meters would clearly fall within the description of ‘installations’ or ‘apparatus’) then commonsense must surely dictate that you should have access to them. I have little doubt that a court or tribunal would imply this right into a lease if necessary. With regard to parking, the lease refers to the flat as having a ‘garage’ or ‘parking space’ but rather oddly ‘the Tenant’s Garage’ is deemed to mean either of these (clause 2(b) on p. 3) and the lease does not state which it is (perhaps this is just so that the wording of the lease can be standard, whether it includes a garage or a parking space). Whether a garage or a parking space is allocated it is included in the lease so it actually belongs to the individual leaseholder (in some leases, but not yours, the whole parking area remains part of the common parts for the purposes of resurfacing, etc., but leaseholders are given a right to park in a designated space). If only garages are indicated on the lease plan, and those leaseholders who have been given an allocated ‘concrete base’ have nothing shown on their lease plan then this would seem to me to be a mistake, and I am surprised that it was not picked up by the solicitors for the purchasers when the leases were first granted. If a garage (or a parking space) is actually included in the lease then this should not only be shown on the lease, but it also ought to have been picked up by the Land Registry when the lease was first registered, as they would then need to show not only the flat but also the garage or parking space on the official filed plan to the leasehold title of the flat. It would be very odd for the Land Registry not to have queried the position if a lease referred to a parking space but then did not appear to show one. The rights that go along with each Flat are set out in the First Schedule. The right ‘to go pass and repass with or without vehicles over and along the access roads ....etc’ (Clause 1(a) in the First Schedule: p13) means what it says and does not give leaseholders any rights to park on those roads. Clause 1(f) gives the right ‘to use the Visitors Car Parking Area forthe temporary parking of private motor vehicles belonging to visitors to the Development’. The Visitors Car Parking Area is defined at 2(h) on Clause 3, and the landlord reserves some right to to designate alternative areas to those indicated on the lease plan. As Bob has indicated, references to visitors’ car parking spaces can be the subject of argument: if someone has a boyfriend or girlfriend move in are they then a visitor? What if they spend only the weekends at the flat? Where does one draw the line? The reference to ‘temporary parking’ would suggest to me that it does not entitle a ‘permanent’ visitor to monopolise a temporary visitors’ car parking space. You may, as Bob says, have to do more to regulate parking. Fortunately Clause 14 of the Fourth Schedule (at the very end of the lease) gives the Landlor power to make further rules and regulations which could certainly include the regulation of the use of visitors’ car parking spaces. It is generally accepted that such regulations can regulate and supplement the rights granted by the lease, but not actually remove them. The clause here seems in fact to go slightly further and allow the Landlord to impose regulations in ‘substitution’ for those included in the lease, though I think it might be implied that e.g. to remove visitors’ parking rights entirely might be going too far. It would, however, clearly give the managing agents the power to come up with some reasonable definition of what amounts to ‘temporary parking’. Bob is able to offer useful experience of how regulation of visitors’ parking might work. I hope that this is useful. It may be that it is necessary to investigate why those who were intended to have a designated parking space appear not to have one, though as it would require detailed consideration of all the leases or counterpart leases and all the Land Registry Title plans I do not think I would be in a position to assist on this. [Submitted September 2016]

Stopcocks and Parking

Search

Articles Archive