Amongst the many excuses we see for non-payment of service charges payable in respect of leasehold flats or freehold estates, “I don’t have access to those common parts, so I don’t have to pay” is one of the most common.

This could be, for example, the owner of the ground floor flat with no need to use the lift. Or, as we have recently seen, a duplex apartment with its own entrance separate to adjoining blocks of flats and no need or right under the lease to access those other blocks. Or, again in a recent case of ours, a flat with direct street access and no access to other common parts on the development, be that external communal gardens or walkways, or internal staircases and hallways.

Understandably, a leaseholder or property owner will feel aggrieved in such circumstances at having to make contributions towards the cost of works and services provided to areas which they have no need, or indeed no right, to access and therefore receive no direct benefit from such services.

The answer in all such cases will always be that the lease or transfer deed dictates the costs of services to which the leaseholder or property owner is to contribute toward. In most cases, it makes sense from a practical perspective for all leaseholders/property owners to contribute towards the costs of all works or services provided to the entire block or estate. Rarely will the terms of the agreement make distinction in terms of who has access to what parts of the block or estate, or who benefits from such works or services, when it comes to determining the contributions to be made by way of service charges. Agents should also bear this in mind and ensure leaseholders/property owners are charged in accordance with the lease/transfer deed, and not what they consider the appropriate charge to be.

Of course each case will turn on its own facts and in particular the terms of the agreement in question. In almost any case of this kind, in the absence of compelling grounds to disapply the obligations set out in the agreement, the Court or Tribunal will hold the leaseholder or property owner to the strict terms of the lease or transfer deed, that being the ‘bargain’ they signed up to when they bought the property, irrespective of whether it is fair or reasonable in their eyes. This was the very outcome in our recent cases, the result of which (certainly in one of the cases) being a substantial award of costs in favour of our client in addition to the outstanding service charges payable.

Should you have any queries in relation to this Legal Update, please contact Faye Didcote on 01435 897297 or Faye.Didcote@kdllaw.com.

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