The case of Weycroft Weybridge Ltd v Wilson was an appeal to the Upper Tribunal (UT) in respect of an application made under section 35 of the Landlord and Tenant Act 1987. This provision gives a Tribunal the discretion to vary a long lease of a dwelling if the lease fails to make satisfactory provision for certain specified matters, including repair and maintenance. The decision also highlights a number of key principles which arise in respect of leases including the consequences of making additions to demised premises, the subsequent liability for repair and the effects of an implied surrender and re-grant.
This case concerned a large house which had been split into 4 flats in the 1950s. The lease of the ground floor flat and garden (Flat 1) was granted in 1960. The main structural parts of the building were excluded from the Flat 1 demise and responsibility for their repair and maintenance fell to the management company under a 1959 lease of the "Reserved Parts" of the building (1959 Lease). In 1994, the Flat 1 lease was varied to extend the term at an increased rent, by way of a deed of variation.
In the 1960s, Flat 1 was altered by the erection of an extension within the garden. The tenants of the flat which overlooked the extension, later added a door which allowed them to access and use the extension’s flat roof as a terrace.
There was a dispute about water ingress which caused damage to the ceiling of the extension which led to the application for the lease to be varied to allocate responsibility for the repair and maintenance of the extension, its roof and structure to the management company.
The UT concluded that:
- The original demise of Flat 1 included the flat and the surrounding garden (airspace above and soil below) and therefore the extension was wholly within the demise from the moment of its construction.
- The Flat 1 tenant's repairing obligation applied to the whole of the premises "and all additions thereto".
- The extension of the term by the 1994 deed of variation amounted to a surrender and re-grant.
- where a variation effects a surrender and re-grant, the "new" lease granted as a result would be on the same terms as the original lease i.e. the tenant being responsible for repairs to the premises save for any parts reserved to the management company.
- The management company's repairing obligations in the 1959 Lease could not have extended to the structural parts of the extension because the extension did not exist when that lease was granted and the drafting did not provide for this.
- The lease of Flat 1 did not therefore make satisfactory provision as to the parties' repairing liabilities nor reflect what the parties intended in respect of the responsibility for repair and maintenance of the extension, its roof and structure.
The UT made an order to vary the lease to clarify that the management company would be responsible for the maintenance and repair of the roof and structural parts of the extension.
From a practical perspective:
- Lease Drafting: It is critical to ensure leases clearly define the extent of the demised premises and the parties' repairing responsibilities in respect of them and any additions to them.
- Variations: Be very careful to avoid an implied surrender and re-grant when varying a lease.
- Historic Development: Landlords acquiring a freehold subject to leases where alterations have been made to the building should be cautious. If there have been any alterations following the grant of a lease, check they have been correctly documented to ensure there are no gaps in either the repairing covenant or service charge recovery to avoid future disputes.
