It is wise to seek legal advice before making an application to the First-tier Tribunal (FTT) for a determination of liability to pay service charges. Recently, the FTT was unable to rule conclusively on whether the tenants of two flats were liable to contribute to repairing an access road.
The tenants held long leases of two flats in a sheltered housing complex for over 55s which was located on a private access road. Their leases required them to contribute towards the costs of services provided by the landlord via a variable service charge. Repairs to the access road had become necessary and the landlord considered that contributions to its maintenance were recoverable under the leases. The tenants sought a determination under Section 27A of the Landlord and Tenant Act 1985 and Paragraph 5A of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 as to the amount of service charges payable.
The tenants and the landlord agreed that the access road did not form part of the freehold title of the housing complex. The lease described the housing complex as comprising 45 self-contained units of accommodation together with an underground garage area, driveways, outbuildings, footpaths and gardens.
However, the FTT noted that the extent of the housing complex was shown in its Land Registry title. Whether or not any part of the access road formed part of the land included in the title was outside the FTT’s remit. The plan attached to the title determined the extent of the housing complex for the leases, and thus for the payability of service charges.
The tenants had also applied for an order preventing the landlord’s costs of the proceedings from being passed on through any service charge. Taking into account its determinations on the payability of service charges, the FTT declined to make such an order.