Levitt and Levitt v LB Camden [2011] UKUT 366 (LC)
The Brunswick Centre is a well-known mixed residential and commercial development in London. There are almost 400 flats atop perhaps 30 or so commercial units. The flats are (for the most part) heated by a warm air re-circulation system, whereby the heat/hot water is produced by a central boiler and then pumped round the building. In about 2005, Camden (for it is they) decided that the boiler/pipework was reaching the end of its natural life and that it needed replacement.
The appellant leaseholders purchased their flat in about April 2005. They were not prepared to wait for Camden to do the works and replaced the heating system in their own flat at their own cost. Camden then went ahead and replaced the communal supply and, in most cases, the equipment in each of the flats (‘tho not in the appellants flat). This resulted in a demand of c.£14,000 from each leaseholder. The appellants were not willing to pay this and contended that they should only be required to pay for the communal works and not for the works in each flat. The LVT disagreed with them and they appealed to the Upper Tribunal (Lands Chamber).
The appeal was dismissed. The lease obliged the leaseholder to contribute towards, inter alia, the “boilers and heating and hot water apparatus (if any) in the Block save and except such items (if any) as may be now or hereafter installed in the Flat serving exclusively the Flat and not comprising part of a general heating system serving the Block.” This was apt to cover the works in each flat. The phrase “… and not comprising part of a general heating system…” showed that items were excluded from the covenant only to the extent that they served only the flat AND were not part of a general heating system.
The leaseholders had also taken issue with the method of apportionment. The obligation to pay was in three parts: by refernece to rateable value, in a fair and reasonable proportion or such other method as the Landlord shall specify.” Camden had relied upon the last clause and the leaseholders argued that this was an exceptional provision, only to be used, in effect, whether the other two were inapprlicable. The UT(LC) disagreed. The clauses were alternatives to be used by the landlord as he saw fit.
The leaseholders attempted to argue that the Unfair Terms in Consumer Contracts Regulations 1999 effectively obliged the landlord to chose a method of apportionment that most favoured them. The UT(LC) disagreed. The point hadn’t been raised before the LVT, so it was unclear to what extent it could be raised now on appeal. But, in any event, it was hard to see how the lease provisions were unfair. Camden had tried to argue that Mr Levvitt wasn’t a consumer for the purposes of the 1999 Regulations, as he was an architect who appeared to have been involved both in the original design/development of the Brunswick Centre. That, at least, didn’t wash.
Finally, there was no suggestion that the costs were unreasonable in themselves. Appeal dismissed.
* Wide Open Space, by under-appreciated 90′ band Mansun. Bonus points for anyone (other than Chief) who knows why this is relevant to the case.