The Upper Tribunal recently reversed an FTT decision which allowed for a landlord to recover the costs of removing refuse which had been dumped in the car park area of a building via the service charge to tenants, leaving the landlord having to pay for the cost of removing fly-tipped waste.
In Wilcock v The Guinness Partnership Ltd [2019] UKUT 146 (LC), HH Huskinson heard an appeal by a tenant of a flat within a building comprising eight flats. The building had four ground floor flats, each of which had their own entrance from the front garden, and four first floor flats which had an entrance from the rear of the building. There were three small lawns on the front boundary, as well as a car park at the rear of the building.
Issues arose when individuals started fly-tipping waste in the car park, which the landlord sought to resolve by paying for waste removal services from time to time to clear the car park. The landlord then attempted to recover the costs of the service by adding it onto the service charge claimed from tenants under the tenancy agreement.
Considering the Appeal, the Upper Tribunal held that as the tenancy agreement did not list bulk refuse removal as being a service that was to be provided, the cost of it could not be claimed back by the landlord. Whilst the lease contained a provision for the variation of the amount of service charge which could be charged, the variation could only occur if there was a change in the costs of the services which were listed on the lease as being recoverable by the landlord. It did not permit for a variation of the type of services that could be reclaimed under the service charge.
Moreover, as the landlord had covenanted to keep the common parts in reasonable repair, Huskinson HH deemed that this included ensuring that the car park was clear from bulk refuse.
The decision in Wilcock shows the strict interpretation taken by the Tribunal with regard to service charges. With this in mind, landlords should ensure that lease covenants are drafted in a way which allows for the recoverability of a range of potential costs which might not be immediately foreseeable – or like the Guinness Partnership, they may find themselves footing the bill for a load of old rubbish!