Weycroft Weybridge Limited v Ian Wilson & Anor

For s 35 of the Landlord and Tenant Act 1987, satisfactory provision is assessed by reference to the circumstances existing when the application is determined. A lease may fail that test where its documents leave genuine uncertainty about the extent of the demise or responsibility for repairing an extension. An extension built within land already demised generally forms part of that demise, but repairing obligations depend on the proper construction of the relevant covenants. An implied surrender and regrant arising from an extension of the term does not alter other lease terms unless that is necessary to give effect to the parties’ transaction. The Tribunal may vary the lease to resolve uncertainty and record an agreed allocation of responsibility.

The respondents held a long lease of a ground-floor flat. A previous lessee had constructed an extension on part of the demised garden, with a flat roof later adapted as a terrace by lessees of another flat. Water penetration caused damage, and uncertainty arose over whether the extension and roof were within the flat lease or the reserved property, and which party was responsible for repair.

The First-tier Tribunal varied the lease under s 35 of the Landlord and Tenant Act 1987 to make the appellant landlord responsible for repairing the roof. The appellant appealed, arguing that the lease already made satisfactory provision. The central issue was whether the lease failed to make satisfactory provision for repair or maintenance.

1. Appeal dismissed. The FTT’s decision to vary the lease was upheld, but the Upper Tribunal substituted a differently worded variation. The variation placed the ground-floor extension, its external structure and roof, and the roof joists and beams within the Reserved Property and made the appellant responsible for their repair.
2. The question whether a lease makes satisfactory provision under s 35(2) of the Landlord and Tenant Act 1987 is determined by the circumstances existing at the date of determination. A defect may be sufficiently established even if it has not yet caused a physical problem, where the lease and circumstances foreseeably produce future uncertainty.
3. The extension had been constructed on garden already included in the demise. It therefore formed part of the demised premises from construction. The lessee’s covenant to repair the whole of the premises and additions to them extended to the extension unless repair was assigned to the Management Company under the Sixth Schedule.
4. The Sixth Schedule did not clearly extend the Management Company’s repairing obligations to a later extension constructed wholly within premises demised to the flat lessee. The better view was that the respondents were responsible, although unavailable documents might have altered that conclusion.
5. The 1994 deed extended the term and increased the ground rent, while providing that the lease otherwise continued in force. The doctrine of implied surrender and regrant did not alter the parties’ repairing obligations or transfer the extension to the Reserved Property, because no such change was necessary to give effect to the deed.
6. The uncertainty over ownership and repairing responsibility had already caused a dispute and could recur, particularly on assignment. The possible inconsistency with the repairing arrangements for the rest of the building, and the practical need for access through another flat, reinforced the conclusion that the lease failed to make satisfactory provision. The FTT was therefore entitled to exercise its discretion to vary the lease.

• First-tier Tribunal (Property Chamber): On 1 July 2024, varied the respondents’ lease under s 35 of the Landlord and Tenant Act 1987 to clarify that the extension roof was Reserved Property to be repaired by the appellant.
• Upper Tribunal (Lands Chamber): Dismissed the appeal, upheld the FTT’s decision to vary the lease, and substituted a revised form of variation.