Cases - Kris Seo Bay Tay v Holding & Management (Solitaire) Ltd

Record details

Name

Kris Seo Bay Tay v Holding & Management (Solitaire) Ltd

Date

[2019]

Citation

UKUT 373 (LC)

Keywords

Service charges – construction of the lease – whether windows are a part of the structure of the building

Summary

The respondent lessor sought to recover from the appellant long lessee the sum of £7,034.26 for unpaid service charges incurred during the replacement of patio doors and windows in the lessee’s block.

The lessee argued that the under the terms of the lease the patio doors fell within her demise. The lease expressly prohibited the landlord from recovering through the service charge sums spent on repairs on anything demised to the tenant. Further the landlord was not obliged under the lease to repair the windows. In the alternative, the appellant argued that the respondent should have only repaired rather than replaced the patio doors and windows.

The lessor argued that under the lease it was obliged to repair the windows as part of the structure of the building. In the alternative, the lease permitted replacement of the windows if it was a reasonable course of action.

The lessor admitted that the doors in the flat were demised to the appellant, but the patio doors were part of a unit with the windows and it was therefore not possible to replace the windows without replacing the patio doors.

The FTT agreed with the respondent. The appellant appealed.

The Upper Tribunal (Lands Chamber) UT found that under the terms of the lease the doors in the external wall of the flat belonged to the appellant and this included the patio doors. The lessor was not obliged to repair the patio doors and could not recover the cost of the same through the service charge.

Whether the windows were a part of the structure of the building was a question of construction. ‘Structure’ was not limited to load-bearing elements, but consisted of those elements of the overall dwelling house which gave it its essential appearance, stability and shape.

Having regard to the intention of the parties in construing the lease, it was highly unlikely that they would have intended that nobody should be responsible for repairing the windows. In light of the contractual silence with respect to where responsibility for repairing the window lay, the windows must be regarded as part of the structure of the block. Accordingly they fell within the respondent’s repairing obligations. Due to the deterioration of the windows replacement was the only practicable option.