Philomina Louisa Reynard Tann v Suni Bhundia & Ors

A lease of part of a horizontally divided building ordinarily includes the external walls and, absent an express reservation, the horizontal structure between the premises. The parties’ repairing obligations depend on the proper construction of the leases and their allocation of the demised premises. A landlord’s repairing covenant covering items belonging to, or used or capable of being used by, the landlord with the lessees does not extend to a structural element demised to a lessee and incapable of use by the landlord. Nevertheless, a structural element may be a party structure for service-charge purposes where it immediately adjoins another demise and is used for that lessee’s benefit. Procedural fairness is not denied by an interrupted video connection where the tribunal halts the hearing, waits for reconnection and repeats material submissions.

The freeholders applied to the First-tier Tribunal (Property Chamber) for a determination under Landlord and Tenant Act 1985 as to liability for repairing a cracked concrete slab forming the roof of the lower maisonette’s extension and the balcony of the upper maisonette. The FTT held that the slab was demised to both lessees, that the freeholders were not liable to repair it, and that each lessee should bear half the cost.

The appellant challenged the construction of the leases and alleged procedural unfairness because her video connection was interrupted during the FTT hearing. The central issues were the extent of the demised premises, the parties’ repairing covenants, the availability of a service charge, and whether the hearing had been fair.

1. Procedural fairness. The FTT acted fairly. It stopped the hearing when the appellant’s connection failed, waited for her to reconnect, restarted the hearing and required counsel to repeat his opening. The appellant’s unsuccessful attempts to contact the FTT were understandably stressful, but did not make the procedure unfair. The appeal failed on this ground.
2. Extent of the demise. Applying the ordinary meaning of the leases and the circumstances known when they were granted, the absence of an express reservation meant that the external walls and the horizontal structure between the maisonettes were demised. A medial division of the structure would be impractical and was unlikely to have been intended. The parties instead intended the horizontal structure, including the concrete slab, to belong with the lower maisonette.
3. Landlord’s repairing liability. The landlord’s covenant applied only to items belonging to the landlord or used or capable of being used by the landlord with the lessees. The slab and horizontal structure were demised to the lower lessee and could not be used by the landlord. The landlord was therefore not obliged to repair them. The reference to “roofs” did not alter that conclusion and could, at most, refer to the main roof.
4. Service charge. The slab was a party structure for the purposes of the upstairs lease. It immediately adjoined the upstairs demise and was used for the upstairs lessee’s benefit by providing support. The upstairs lessee therefore had to contribute to the repair cost through the service-charge covenant. Each lessee was liable for half.
5. The FTT’s decision was set aside and the Upper Tribunal’s decision substituted. The lower lessee was responsible for arranging the repair; the upstairs lessee had to permit access and contribute half the cost, with enforcement of that covenant by the lessor.

• Upper Tribunal (Lands Chamber): The appeal was allowed in relation to the construction and application of the repairing and service-charge covenants. The procedural-fairness ground was dismissed. The FTT’s decision was set aside and the Tribunal’s decision substituted.
• First-tier Tribunal (Property Chamber): The FTT determined that the freeholders were not liable to repair the slab, that it was demised to both lessees, and that the repair cost should be shared equally.