Cases - The Mayor and Burgesses of the London Borough of Camden v Ms E Morath and others
Record details
- Name
- The Mayor and Burgesses of the London Borough of Camden v Ms E Morath and others
- Date
- [2019]
- Citation
- UKUT 193 (LC)
- Legislation
- Keywords
- Service charges – variation of service charge – s.35 of the Landlord and Tenant Act 1987
- Summary
-
The appellant held a lease of part of the Brunswick Centre, which is a mixed-use development of residential flats, shops and a cinema. The appellant’s lease was for a term of 99 years. The demised premises were 2 buildings (Foundling Court and O’Donnell Court), containing 210 and 185 flats respectively, which are let to residential sublessees. The subleases fell into 3 categories: type A, type B and type C.
Two of the categories of subleases – B and C – required the sublessees by virtue of their leases to pay the appellant a proportionate part of what the appellant had paid towards the head lessor’s expenditure. The type A subleases did not contain the same provision. By virtue of the type A subleases, the sublessees were required to pay to the appellant a proportionate part of its reasonable expenses incurred in meeting its obligations under the sublease. Those obligations related only to the building in which the relevant flat was situated (Foundling Court or O’Donnell Court). There was no provision for the appellant to be reimbursed for what it paid to the freeholder under the terms of its own lease except insofar as the freeholder’s expenditure related to the individual building where the flat was situated.
The appellant applied to the First-tier Tribunal (FTT) to vary the terms of the type A subleases under section 35 of the Landlord and Tenant Act 1987 (the 1987 Act). The FTT refused the application and the appellant appealed.
The decision of the FTT was upheld by the Upper Tribunal (Lands Chamber) (UT). The UT noted that an application to vary would not succeed unless it could be shown that the lease failed ‘to make satisfactory provision’ for various matters listed in section 35(2) (a)–(g), the relevant matter in this case was (e), namely the recovery by the landlord of expenditure incurred for the benefit of the tenant.
Relying on Cleary v Lakeside Developments Ltd [2011] UKUT 264 (LC) and Triplerose Ltd v Stride [2019] UKUT 99 (LC) the UT had to consider whether the wording of the lease as it stood was clear, and whether the term sought to be varied was workable. If it was clear and workable, it was not unsatisfactory. The question of whether the bargain as it stood worked in practice had to be considered on the basis of the evidence in each case. But s.35 of the 1987 Act did not enable the FTT or the UT to vary a lease on the basis that it imposed unequal burdens, or was expensive or inconvenient. The extent to which the underlessees were obliged to pay towards costs incurred by the appellant and the Head Lessor, were clear and perfectly workable.