Who pays for repairs when one man's roof is another man's floor?

A judge has settled the tricky question in a case that sparked controversy between two leaseholders sharing a roof/floor and the property’s two freeholders.

The case involved two maisonettes contained in a house belonging to two freeholders, who leased them in 1980. The ground-floor maisonette had been extended to provide an additional room beyond the kitchen. The roof of the extension served as a balcony of the first-floor maisonette and consisted of a concrete slab topped with an asphalt surface above the extension's ceiling. The concrete slab was cracked and needed repair.

The freeholders applied to the First-tier Tribunal to consider who was responsible for the repair. The tribunal found that the leases only obliged the freeholders to repair certain items that were either reserved to them or that they used or could use. It did not consider that the concrete slab fell within those items. It decided that it was fair to require the leaseholders to pay half each towards the repair.

The ground-floor leaseholder submitted that the tribunal had erred in interpreting the leases and finding that the freeholders were not responsible for the roof of the extension. However, the Upper Tribunal (Lands Chamber) upheld the decision. Judge Elizabeth Cooke said the tribunal was correct in finding that the freeholders were obliged only to repair specified items that belonged to them or that were capable of being used by them. As the concrete slab and horizontal structure were not reserved to them and could not be used by them, they were under no obligation to repair them. They were the responsibility of the ground-floor maisonette, and their repair was that leaseholder's responsibility.

However, the service charge clause in the first-floor maisonette's lease obliged the leaseholder to contribute to the cost of certain items shared with the ground-floor maisonette, in particular, party structures. Although the structural material between the two floors was the responsibility of the ground-floor maisonette, it was also a party structure, as it immediately adjoined the first-floor maisonette and was used for a common benefit in that it supported the floor of the first-floor maisonette and sheltered the ceiling of the ground-floor maisonette. Therefore, the cost of repairing the concrete slab would be incurred by the ground-floor leaseholder but shared with the first-floor leaseholder. Each lessee should pay half the cost of the repair.

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