Service Charge for items in disrepair | Southwark LBC –v- Various Lessees of St. Saviours Estate
This is a matter upon which the Upper Tribunal gave a determination in January 2017 and which could have far-reaching consequences for those providing services and carrying out repairs to block developments.
In this case, Southwark LBC sought to argue that they were entitled to replace front entrance and communal doors as the doors were in disrepair. Various alterations had been carried out to the doors and modifications had taken place. The Leaseholders argued that the cost of such replacements were unreasonable as the replacement was unnecessary.
The Upper Tribunal held that a front entrance or communal door within a block of flats is not in disrepair merely because it has been modified or replaced. The issue is whether such modification or replacement has impaired the usage of the door in any way and, if the usage is not impaired then the argument of disrepair will not be viable.
The issue here was whether alterations to the doors had impaired their fire resistance of 20 to 30 minutes. There was no expert evidence to show that the fire resistance of the doors was impaired in any way and therefore, despite the alterations and replacements, it was not reasonable to replace the doors and claim the cost of doing so through the service charge unless expert evidence could be provided to show that the doors were in disrepair.
This has potentially far-reaching consequences for maintenance and repair services. It appears that, following this decision, it will be necessary where service charge is incurred for large items of disrepair, to be able to show the nature of the disrepair and, if necessary, seek an expert opinion before carrying out such repairs and seeking to recover the cost through the service charge.
It is unlikely that minor items of disrepair or very obvious cases of disrepair would be affected in any way, but where the issue of disrepair is not manifestly apparent or where there is no expert report to back up the assumption, then such matters should be approached with an appropriate degree of caution.
It is also worth pointing out that a surveyor’s report will not necessarily be sufficient where the item of disrepair is of a specialist nature, such as fire resistance and to prove the necessity of the repair an expert report from a specialist in that filed will be required.