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Windows - part of structure? |
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A long lease of a maisonette bought under the Right to Buy legislation
contained unusual provisions relating to the windows. The lease specifically
included the external windows as part of the demise. The repairing obligation
on T extended to the demised premises and therefore expressly included the
external windows. However, L was required to keep in repair ‘the structure
and exterior of the demised premise and the building’, and L also had the power to carry out improvements. The question then arose as to whether T
was liable, through the service charge, for repairs and improvements carried
out by L to the external windows. The Lands Tribunal held that T was liable
even though the windows were part of L’s demise.
It is well established that ‘the structure’ of the building will not be limited
to load-bearing parts. With a commonsense approach, a material element
of the construction of a property will include the windows; thus, external
windows will be part of the ‘structure’ of a dwelling house, and they will also
be regarded as part of the ‘exterior’ ( Irvine [1991] ). Following that authority,
the external windows in this case were both part of the ‘structure’ and part of
the ‘exterior’, with L therefore being obliged to keep the windows in repair.
Likewise, they came within the scope of the improvements definition in the
lease and therefore T would be liable, through the service charge, for the
costs of improvements to those windows even if those improvements were
unwanted by T.
The end result is that both L and T were responsible for repairing the windows!
As a note in www.practicallaw.com points out, the idea that L can carry out
improvements to T’s long leasehold premises may well seem inconsistent with
the concept of a long lease being granted for a premium. Accordingly, when
such leases are granted it is always worth checking whether L does have the
power to carry out improvements and include them as part of the service
charge; if so, then those provisions should be resisted. If it is an existing lease
that is being assigned, then check whether such provisions apply – and, if
so, advise clients of the implications. Sheffield CC v Oliver [2008] EW Lands
LRX/146/2007 . Source: www.practicallaw.com (subscription service).© Practical Lawyer
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October 2008 |
