Anchor Hanover Group v Kenneth Cox

Section 11 of the Landlord and Tenant Act 1985 does not impose a general obligation on a landlord to repair all common parts or common facilities in a block of flats. Subsection (1A) extends the existing obligations concerning the building’s structure and exterior, and the specified service installations, beyond the dwelling-house. It does not expand the categories of installation covered by section 11(1)(b) and (c).

Section 11(1B) is a limitation on those extended obligations. It requires relevant disrepair to affect the tenant’s enjoyment of the dwelling-house or common parts. A lift is neither part of the building’s structure or exterior nor an installation of a type specified by section 11(1). Its repair costs may therefore be recovered through a contractual service charge.

Anchor Hanover Group v Kenneth Cox concerned an assured tenant’s liability to contribute through a service charge to the cost of repairing and maintaining a lift in a retirement block of flats. The tenancy agreement provided for a service charge, including lift repair and maintenance.

The First-tier Tribunal (Property Chamber), in a decision issued on 15 June 2022, held that the lift was an essential common facility falling within section 11 of the Landlord and Tenant Act 1985. It therefore treated the contractual service-charge provision as ineffective so far as it required a contribution to lift costs.

The landlord appealed. The central issue was whether section 11 prevented recovery from an assured tenant of service-charge contributions for lift repair and maintenance.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The Tribunal substituted a determination that Mr Cox was liable for his share of the lift repair and maintenance costs claimed through the service charge from 2016.

2. Section 11(1) of the Landlord and Tenant Act 1985 identifies the subject matter of the implied repairing covenants: the structure and exterior, and specified installations for water, gas, electricity, sanitation, space heating and heating water. Section 11(1A) extends those existing obligations beyond the dwelling-house where the statutory conditions are met. It does not alter the kinds of installations covered.

3. Section 11(1B) does not create a free-standing obligation to repair common parts or common facilities. Its function is limiting: an obligation otherwise arising under section 11(1A) applies only where the disrepair affects the tenant’s enjoyment of the dwelling-house or common parts which the tenant is entitled to use.

4. A lift is not part of the structure or exterior of the building. It does not give the building its essential appearance, stability or shape. Nor is it an installation of a type specified in section 11(1)(b) or (c). The fact that it is an essential common facility for elderly or mobility-impaired residents does not bring it within the statutory covenant.

5. Accordingly, sections 11(4) and (5), which invalidate a tenant’s repair covenant or contribution to the landlord’s costs only to the extent that it concerns the implied obligations, did not invalidate the lift service-charge provision. A voluntary statement at a tenants’ meeting that the landlord would pay for replacement of the lift did not, on the evidence, alter the parties’ legal rights and did not justify a remittal.

6. The Tribunal ordered under section 20C of the Landlord and Tenant Act 1987 that the landlord could not include its appeal costs in a service charge payable by Mr Cox. It also extinguished any administration-charge liability for those costs under paragraph 5A of Schedule 11 to the Commonhold and Leasehold Reform Act 2002.

• Upper Tribunal (Lands Chamber): Allowed the landlord’s appeal in [2023] UKUT 14 (LC), set aside the First-tier Tribunal’s determination on lift costs, and substituted a determination that the tenant was liable to contribute through the service charge.
• First-tier Tribunal (Property Chamber): By a decision issued on 15 June 2022, held that section 11 of the Landlord and Tenant Act 1985 prevented recovery of lift repair and maintenance costs through the service charge.