Anchor Hanover Group v Cox (2023) UKUT 14 (LC) (Copy of judgment here. Not on Bailli or national archive yet)

A somewhat unusual Upper Tribunal appeal concerning the application of section 11 Landlord and Tenant Act 1985, which ends up being about the scope of section 11.

Mr Cox had an assured tenancy in a purpose built independent living retirement development of 51 flats. Many of the tenants are infirm, or use wheelchairs, walking sticks or frames. The building is over four floors and has a lift.

Unusually, Mr Cox’s tenancy agreement had a variable service charge provision, and the listed services included the repair, maintenance and insurance of the lift serving the building.

Maintenance and repair of the lift were agreed to be Anchor Hanover’s responsibility under the tenancy agreement.

In 2021 Mr Cox applied to the FTT for a determination of his liability to pay service charges in respect of the costs of a new lift installed in 2018, the lift servicing contract, lift inspections and repairs.

Mr Cox argued that the repair of the lift fell under section 11 Landlord and Tenant Act 1985, and as a result, the landlord could not recover the cost of works from the tenants by reason of s. 11(4) and (5)

(4) A covenant by the lessee for the repair of the premises is of no effect so far as it relates to the matters mentioned in subsection (1)(a) to (c), except so far as it imposes on the lessee any of the requirements mentioned in subsection (2)(a) or (c).

(5) The reference in subsection (4) to a convenant by the lessee for the repair of the premises includes a covenant—

(a) to put in repair or deliver up in repair,

(b) to paint, point or render,

(c) to pay money in lieu of repairs by the lessee, or

(d) to pay money on account of repairs by the lessor.

At first instance, the FTT agreed with Mr Cox.

The FTT noted that s.11(1A) extended the landlord’s repairing obligations to ‘any other part of the building in which the landlord has an interest’ and that s.11(1A)(b) extended any reference to any installation in the dwelling-house to an installation which directly or indirectly serves the dwelling-house and is under the control of the landlord.

The FTT then said

“Section 60 of the Landlord and Tenant Act 1987 quoted above defines common parts in relation to any building or part of a building as including the structure and exterior of that building or part and any common facilities within it. There can be no doubt the lift is a common facility.”

(the reference to section 60 LTA 1987 is via s.11(1B) LTA 1985, which says

(1B) Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use. )

The FTT doubted that the lift formed part of the structure of the building, but went on

“There can be no doubt that the lift forms part of the common parts of the building as being a common facility for the purpose of section 60 of the 1987 Act. We further consider that the lift is an installation which indirectly serves the dwellinghouse and therefore comes within the scope of section 11.

“ We recognise that section 11(1)(b) refers to certain essential installations but not to other fixtures fittings or appliances. We consider that, in the context of a sheltered housing scheme where the residents must be over 55, a lift is an essential installation and comes within s.11(1)(b). In a sheltered housing scheme of 52 flats, it must be expected that at any time, a proportion of the residents will be of limited or impaired mobility.”

Anchor appealed.

The Upper Tribunal allowed the appeal. The FTT had gone astray in its analysis.

S.11(1A) only extended the repairing obligation in s.11(1) to the building. That was ‘structure and exterior’, installations for supply of water, gas, electricity and for sanitation, and installations for space heating and heating water.

S.11(1B) did not add a new implied repair obligation to the ‘common parts’.

27. Subsection (1B) does not add a new implied repairing obligation, and specifically it does not add the common parts of the building to the subject to the landlord’s obligations under subsection (1) and (1A). The subject matter of the covenants remains, first, the structure and exterior of the dwelling-house and the building in so far as it belongs to the landlord, and secondly, the specific types of installation identified in section 11(1)(b) and (c) (whether inside the dwelling-house or in another part of the building) provided they directly or indirectly serve the dwelling-house. Instead, subsection (1B) qualifies the obligation to repair the structure and exterior of the building and the relevant installations so that it arises only if the disrepair affects the lessee’s enjoyment of the dwelling-house or the common parts.

28. The effect of subsection (1B) is that, if some part of the structure of the building is in disrepair, the landlord is required to repair that part of the structure only if the disrepair is affecting the tenant’s enjoyment of their own flat or the common parts; if the common parts themselves are in disrepair the landlord’s obligation applies only if the part in disrepair is also part of the structure of the building. To give an example, if the carpet on the floor outside the tenant’s flat has a large hole in it, section 11 would not oblige the landlord to repair it, because the carpet is not part of the structure or exterior of the building; but if there is a large hole in the floor itself section 11 would require the landlord to deal with it because the floor is part of the structure of the building.

The lift was not part of the structure and exterior, nor the kind of installation covered by s.11(1)(b)or (c).

39. In my judgment the FTT was right to consider that the lift was not part of the structure or exterior of the building. It is not one of the components which give the building its “essential appearance, stability and shape” and so it does not come within the ordinary understanding of “structure”. It is also within the building, and obviously not part of the exterior. It follows that subsection (1)(a) does not apply, even as extended by subsection (1A)(a).

40. The lift is an installation, but it is not an installation for the supply of water, gas, electricity or sanitation, or for space heating or heating water, and so it does not fall within subsection (1)(b) or (c) as extended by subsection (1A)(b).

It therefore did not fall under the obligation as extended to the building under s.11(1A).

While the lift was an essential installation for the occupants, this was the basis on which the House of Lords had implied a contractual term to keep the lift in repair in Liverpool City Council v Irwin (1977) AC 239, but that did not put it under s.11.

Mr Cox had relied on published advice by Shelter and Citizens Advice on their websites. The Shelter page read:

“Under section 11 of the Landlord and Tenant Act 1985 a landlord is required to keep in repair the structure and exterior ‘of any part of the building’ (including drains, gutters and external pipes) in which they have an estate or interest.

As such, a landlord’s implied repairing obligations extend beyond the flat (or other dwelling) let to a tenant for their exclusive possession and includes obligations to repair common parts of the building (such as a communal front hall or a lift). This obligation only applies to tenancies that began on or after 15 January 1989.”

The Citizens Advice page read:

“For tenancies that began on or after 15 January 1989, these repair responsibilities extend to the common parts of a building too, for example, entrance halls, stairs and lifts.”

The Upper Tribunal found that these were mistaken, and placed too much significance on the reference in s.11(1A) to ‘any part of the building, without following the distinction in s.11(1) between structure and exterior and installations, with installations being limited to gas, water, electricity, heating/hot water.

Appeal allowed. Mr Cox was liable for the service charge for the lift.

Comment

Four years ago, this would have been a very significant judgment that could have caused substantial problems for some cases.

While assured tenancies (or assured shorthold) rarely contain a variable service charge clause – if there is a charge, it is usually fixed and specified – with the result that people in Mr Cox’s position will be few in number, the broader implications for repairing liability would have been concerning.

Most (though not necessarily all) tenancy agreements where the landlord owns the building would have an express repair clause covering lifts, as there was in this case. Even if there wasn’t, such a term would be likely to be implied, as per Liverpool v Irwin.

However, where the landlord is a landlord of the flat only, the tenant would have been reliant on s.11(1A) to extend the repairing obligation to other parts of the building outside the flat.

If the Upper Tribunal is correct, and I rather think it is, then a broken lift would not have been actionable by the tenant against their landlord under s.11.

However, the position changed on 20 March 2019/20 March 2020 (for pre existing tenants). A broken down lift – at least for tenants affected by it – would be highly likely to amount to making the dwelling unfit for human habitation under s.9A and s.10 Landlord and Tenant Act 1985. (Cf Rendlesham Estates v Barr on ‘a lift that broke down with monotonous regularity’). As such it would be actionable by the tenants, regardless of whether there was an express lease clause, and regardless of whether their immediate landlord owned the building.

Would fitness for human habitation have availed Mr Cox and those few(?) in the same position with regard to the service charge?

I think possibly, but only partially.

Section 9A(4) provides

Any provision of a lease or of any agreement relating to a lease (whether made before or after the grant or creation of the lease) is void to the extent that it purports—

(a) to exclude or limit the obligations of the lessor under the implied covenant, or

(b) to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of the lessee enforcing or relying upon those obligations.

Arguably, charging the tenant a service charge for works to remedy a defect that was making the dwelling unfit for human habitation would be a penalty or obligation imposed on the tenant in relying on the s.9A duty.

But, while that might cover a replacement lift, or repair works, I don’t think it would cover routine maintenance and servicing. Unless the lift was inoperative, there was no breach of the fitness duty. Unfortunately for Mr Cox, the major works to the lift were in 2018, before Fitness applied.