In this case the Upper Tribunal considered who was responsible for the flat roof of an extension built after the various leases in the building were granted and varied a lease to make the position clear.
Weycroft was once an Edwardian home which was converted into flats in the late 1950s. At some point during the 1960s the leaseholder of the ground floor flat (Flat 1) built an extension with a flat roof in the garden that formed part of his demise. There was no record of any licence for alterations and the lease plan was never amended to reflect the new extension.
Weycroft Weybridge Limited (WW) originally held a long lease of the common parts of the building and now owns the freehold. The leaseholders own WW in equal shares but over time the other flats in the building were acquired by the Hayley and Martin Hancock who now have a controlling interest. The Hancocks use the first floor flat as an office and installed patio doors and a new roof terrace on the roof of the Flat 1 extension.
A disagreement arose when water penetrated through the flat roof of the extension and damaged the ceiling inside. The Wilsons applied to the FTT to vary the Flat 1 lease pursuant to section 35 of the Landlord & Tenant Act 1987, initially arguing that the Flat 1 lease plan should be amended to reflect the fact that all of the extension was within the Flat 1 demise and then after some to-ing and fro-ing between the parties asking that lease instead reflect that the flat roof was in fact reserved to WW who was responsible for repairing it.
Whilst the FTT agreed the Wilsons' later request, WW appealed on the basis that a variation had not been necessary at all.
After a thorough consideration of the law and the available documents, the Upper Tribunal came full circle holding that:
- Leasehold ownership of the Flat 1 garden carried with it ownership of the airspace above the garden and the soil below it and the Flat 1 extension was therefore wholly within the Flat 1 demise from the moment it was constructed;
- The Flat 1 lease contained an obligation on the leaseholder to repair the whole of the premises and all fixtures and fittings therein and additions thereto which would include the extension;
- The property in the Flat 1 lease that had been reserved to WW in its original capacity as leaseholder of the common parts of the building (including external common parts and the roofs and foundations) was the property which had been demised to them when the original lease of the common parts was granted in 1959. The extension was not built at the time so was not demised and WW could not be assumed to be responsible for repairing it now; and
- A 1994 deed of variation to extend the term of the Flat 1 lease and which operated as a surrender and re-grant did not change the parties' respective repairing obligations.
The Upper Tribunal acknowledged that there was a lack of clarity and varied the Flat 1 lease to confirm that the Flat 1 leaseholders were responsible for repairing all of the extension.
Whilst an application under section 35 of the Landlord & Tenant Act 1987 can assist in remedying a "defect" in a lease in cases which meet the criteria for this provision, parties will still be dependent on the discretion of the Tribunal and, as is evident from the different findings of the FTT and the Upper Tribunal in this case, there are no guarantees. There is no substitute for careful lease drafting and ensuring that alterations and additions are documented by way of formal licences for alterations.
