7th November 2018 at 21:26 #4913
My family (including me) are the joint leaseholders of a flat at Wood Field, NW3 2YA. We have recently been sent a consultation about lift works at Wood Field, which implies an exceptional service charge applying to our flat of £11,899.91. The work is for the replacement/refurbishment of the existing lifts that have reached the end of their useful life. I understand that there are lifts on only three out of seven staircases at Wood Field. Our staircase has no lift. The staircases at Wood Field are entirely separate from each other and we therefore cannot use the lifts.
I accept that there is a degree of “swings and roundabouts” in service charges and we must pay towards communal expenditure; we cannot always expect to receive direct benefit from expenditure to which we contribute. We do pay about £130 per year for lift services that we cannot use, but have accepted that as part of the swings and roundabouts. This large expenditure on the lifts, however, seems to be an extreme example, when we are being asked to make a big payment towards work from which we can never benefit.
It may be that by the letter of our Lease we will be required to find the £11k+, but it does feel a bit tough. Is anyone else affected or have they had experience of similar issues?
Thanks for any helpful comments.18th November 2018 at 16:47 #5008
Nelson, I am a layman – not a lawyer – but my advice would be to challenge Camden’s notice requiring you to contribute to costs incurred in relation to lift installations which are not within your Building.
If your lease is like mine, “Items of Expenditure” is defined as “All those items referred to in the Fifth Schedule the costs whereof form the basis of the Service Charge”. Those items which refer to lifts say “The cost of periodically inspecting maintaining overhauling repairing and where necessary replacing […] lifts lift shafts and machinery therein (if any)” and “The cost (if any) of […] the electric current for operating the passenger lifts”. Note here the use of “if any”.
This “if any” means that a cost must be incurred in respect of a service which the lease requires the landlord to provide. So, is the landlord required to provide a lift in your Building?
The Landlord covenants (what he undertakes to do) are set out in Clause 4. In relation to lifts, 4.2 and 4.2.4 say: “to maintain repair redecorate renew […] The passenger lifts lift shafts and machinery (if any) and the passages landings and staircases and other parts of the Managed Buildings and the Common Parts enjoyed or used by the Tenant in common with others.
Worth noting also that the definition of “Common Parts” similarly refers to those parts being “enjoyed or used by the Tenant”.
As you, the Tenant, do not enjoy or use the lifts so the landlord has no obligation to provide any. Arguably, therefore, neither should you have any obligation to contribute to the cost of lifts which are provided solely for the enjoyment and use of others.
You might consider the following actions:
– Do not pay any charges in respect of lifts
– Make contact (where possible) with other leaseholders in those Buildings which have no lifts and jointly agree a strategy
– Write to the Head of Leaseholder Services (Mike Edmunds) stating your case and ask him to review Camden’s position and retract the notice
– If Camden will not retract the notice, seek legal advice as to the strength of your case
– Seek a determination of your case by the First Tier Tribunal.18th November 2018 at 17:20 #5009
Thanks, WestOneTango. The situation in our building is complicated. Only three out of seven non-communicating staircases have lifts. The lifts are within our building, but our flat and the flats on the other staircases without lifts can never benefit from them. I understand that this issue was raised once before, in the early 1990s, the Council was challenged, but they won the dispute. The Schedule in our lease setting out items of expenditure to be included in the Service Charge includes “The cost of periodically inspecting maintaining overhauling and where necessary replacing the whole of the heating and domestic hot water systems and gas and water pipes and cables serving the Estate and the lifts lift shafts and machinery therein (if any)” There is no reference to whether we (the Tenant) can use the lifts or not. Nevertheless I will take the issue up with Camden Council on the grounds that it feels unfair to have to pay as substantial a sum as £11,000 for a system that one simply cannot use or benefit from.18th November 2018 at 22:31 #5010
Nelson, your lease sounds very similar to ours. I had just quoted extracts relating to lifts and not the full text.
On Lease page 16 (or thereabouts) there is a Clause 4 ‘The Landlord Covenants…’ and that is where the Landlord’s obligations are stated. That is where it makes it clear that the obligation to provide a lift, and therefore the Tenant’s obligation to pay for one, depends on the Tenant named in the lease being able to enjoy and use the lift.
You say that you have 7 non-communicating staircases in your building and that the lifts are within your building. Is it not the case that Wood Field is a terrace of seven Buildings? If so, then your “Building” is defined on Lease page 3 (or thereabouts) as “The building consisting solely of physically linked flats within the Estate and including the Flat described in the Premises and the Common Parts within the Building”. It is important to use the correct terminology.
You say that the Council was challenged in the early 1990’s on this issue but won the dispute. Was the case decided in the LVT property court? Or did the leaseholder give up when the Council said no? Being so recent, it was probably a question of payment of day-to-day charges rather than wholesale lift replacement.
This is not a question of fairness but of a Landlord’s duty to act lawfully in accordance with the terms of the lease and statute. It is unfortunate that leaseholders who do enjoy and use the lifts will probably face an increased contribution.
You must be logged in to reply to this topic.