Crisplane Limited v Plymouth Community Homes Limited

A statutory implied repairing covenant in a right-to-buy lease is an additional landlord obligation. It does not rewrite express repairing covenants or create an unexpressed tenant obligation to contribute by service charge. A tenant may be required to bear a reasonable part of the landlord’s costs under Housing Act 1985, Schedule 6, paragraph 16A, but the lease must provide for that contribution.

Service-charge wording requiring payment of costs incurred under specified landlord covenants does not extend to costs incurred solely under a separate statutory implied covenant. Nor will a general reference to costs of enabling a tenant to enjoy easements clearly include roof-repair costs where the lease’s express service-charge machinery excludes the roof.

Crisplane Limited, the holder of long right-to-buy leases of an upper-floor and a ground-floor flat, challenged service charges for replacing the roofs of two blocks. The respondent landlord had obtained a First-tier Tribunal determination that the tenant was liable for half the cost of each roof, followed by County Court judgments.

The appeal concerned lease construction only. The roofs required repair, the works were reasonably carried out, and their cost was reasonable. The central issue was whether the express service-charge clauses, read with the statutory repairing covenant implied by Schedule 6 to the Housing Act 1985, made the tenant liable for the roof-replacement costs.

1. Appeal allowed. The First-tier Tribunal’s determination was set aside. No service charge was payable by the appellant for replacing either roof.

2. Schedule 6, paragraph 14(2)(a) of the Housing Act 1985 implied a covenant requiring the landlord to repair the structure and exterior of each flat and its building, including the roof. The statutory covenant was additional to the lease’s express covenants. Paragraph 14(4) prevented the parties from excluding or modifying that implied obligation without County Court authorisation, but it did not require the Tribunal to delete or rewrite the express exclusion of the roof from a separate contractual repairing covenant.

3. Paragraph 16A permitted an agreement requiring the tenant to bear a reasonable part of the costs of discharging the implied covenant. Neither lease made such an agreement. No contribution obligation could be implied. In particular, there is no presumption that all works which a landlord must carry out can be charged to leaseholders: City of London v Leaseholders of Great Arthur House [2021] EWCA Civ 431.

4. For the ground-floor flat, the roof was within the reserved premises, whose repair was expressly excluded from the tenant’s contribution obligation. For the upper-floor flat, the roof was excluded from the landlord’s Fourth Schedule obligations; its repair was therefore performed solely under the statutory implied covenant and did not fall within the specified service-charge clause.

5. The alternative argument based on rights of support, shelter and protection also failed. The general wording concerning costs of enabling enjoyment of First Schedule rights did not clearly include roof repairs, particularly where the schedules expressly excluded the roof. That approach accorded with Arnold v Britton [2015] UKSC 36.

The decision did not itself discharge the County Court judgments; the appellant would need to apply to that court for that relief.

• Upper Tribunal (Lands Chamber): allowed the appeal and substituted a decision that no service charge was payable for replacing the two roofs.

• First-tier Tribunal (Property Chamber): in a decision published on 12 April 2023, determined that the appellant was liable for £7,965.60 in respect of repairs at each building.

• County Court: subsequently entered judgments for the sums determined by the First-tier Tribunal, with interest and costs. Those judgments were not disposed of by this appeal.