Two Rivers Housing v Jacob Edward Sanders

A leaseholder’s conditional obligation to contribute to the cost of maintaining a right of way extends only to the parts of the route over which the lease grants that right. It does not, without clear language, extend to structural parts which enclose or protect the route, such as a roof.

Lease construction requires an objective reading of the words in their documentary and factual context. Contra proferentem is a last resort and should not create an ambiguity before the contractual context has been considered.

Two Rivers Housing sought to recover half the cost of repairing a leaking section of roof above the communal stairwell and landing serving the respondent’s first-floor flat. It applied to the First-tier Tribunal under Landlord and Tenant Act 1985 provisions for a determination of liability and for dispensation from consultation requirements.

The First-tier Tribunal decided that paragraph 11 of the lease did not require the leaseholder to contribute to roof repairs, although it found that the cost was reasonable and that consultation dispensation would have caused no prejudice if liability existed. Two Rivers appealed on the construction of the lease.

1. Appeal dismissed. The First-tier Tribunal correctly concluded that paragraph 11 did not oblige the leaseholder to contribute to the roof-repair costs.

2. The Tribunal accepted that the First-tier Tribunal should not have treated ambiguity as automatically resolving against the landlord. The proper construction exercise is objective and contextual. Contra proferentem is a last resort, but the error did not affect the correct outcome.

3. Paragraph 11 made the right of way over the stairway and landing conditional on payment of half the cost of maintaining those parts in repair. Its language covered the structures over which the leaseholder had a right to pass. It did not cover the enclosing walls or roof, over which no such right was granted.

4. The lease’s scheme confirmed that result. Contributions for routes of access were allocated by usage and differed between the entrance area and the stairway. That scheme did not sensibly apply to structural elements serving several areas. The detailed coloured plans identified horizontal access routes, but did not include the walls, roof, or storerooms.

5. Clause 9(i) imposed a comprehensive repairing obligation on the landlord without a variable service-charge mechanism for recovering structural repair costs. Paragraph 4 also gave an unqualified right of protection from the whole roof, without a corresponding repair contribution. The continuous roof had no identified or workable contractual apportionment between the stairwell and other parts of the building.

• Upper Tribunal (Lands Chamber): dismissed Two Rivers Housing’s appeal and upheld the First-tier Tribunal’s construction of the lease.
• First-tier Tribunal (Property Chamber): decision published on 6 July 2021. It held that the lease contained no provision requiring the respondent to contribute to the roof-repair costs.