Curo Places Ltd v Pimlett

13:09 15 December in News & Case Studies
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Curo Places Ltd v Pimlett

 Service Charge disputes

 

Although not required         appeal against that     UKUT lease – Appellant housing association    1 30 (LC); [2019] PLSCS 73. The appellant taking over as landlord and seeking to          appealed to the Court of Appeal. impose charge for grounds maintenance Held: The appeal was allowed. – Issue arising as to proper construction         (1) The only way in which the of tenancy agreement – Whether  appellant could charge for grounds appellant entitled to add and charge for          maintenance was if it was entitled

 

grounds maintenance as “extra” service despite maintenance already being provided – Appeal allowed

The respondent held 30 Sherwood Close, Keynsham, Bristol, on a weekly assured tenancy which arose pursuant to a tenancy agreement dated 18 August 2008. The property was a self-contained one-bedroom bungalow within a sheltered housing scheme for older persons and persons with disabilities which had open grounds including areas of lawn with mature trees.

The landlord under the tenancy agreement was SHT. The appellant was a housing association formed in 2012 following the amalgamation of three housing associations including SHT. In

January 201 7, the appellant gave a written notice to the respondent, seeking to add grounds maintenance to the services under the tenancy agreement for which it could charge, and to charge G77.98 per annum for grounds maintenance for 2017/18.

The respondent argued that the appellant, or its predecessor, as landlord was already carrying out grounds maintenance; there was no obligation to do so; the landlord had no right to charge the cost of grounds maintenance through the service charge; for tenancies granted from 2010 onwards the wording was changed to require tenants to pay a contribution by way of service charge towards grounds maintenance; no change was made for existing tenants so that they continued not to pay any service charge in respect of grounds maintenance.

The First-tier Tribunal (FTT) decided that the appellant as landlord was not entitled to recover the extra charge since

 

pursuant to clause 2.10.1 of the tenancy agreement to add grounds maintenance to the list of services to be charge for.

The words “extra services” in clause 2.10.1 (iii) were governed by the opening words of clause 2.10.1 : “The trust agrees to provide the services (if any) listed in the tenancy agreement and for which you pay a service charge.” The services contemplated by clause 2.10.1 (iii) were those which were extra to the services listed in the tenancy agreement. There was no reference in clause 2.10.1 of the agreement to services that were in fact provided by the landlord, as opposed to those that were listed in the agreement.

The appellant could only operate clause 2.10.1 (iii) for the purpose it sought if grounds maintenance could properly be said to be extra services which would be useful. It was inescapable that clause 2.10.1 (iii) had to be read consistently with subparagraphs (i) and (ii). Sub-paragraph (i) provided that the landlord “may stop providing any of the services if it reasonably believes it is no longer practicable to do so”, while subparagraph (ii) provided that it might

Uprovide the same service in a different manner”. Those sub-paragraphs referred back to the services “listed in the tenancy agreement” and entitled the landlord, subject to consultation with the tenants, to vary the tenancy agreement in those ways. Likewise, subparagraph (iii) entitled the landlord to vary the agreement by adding services if it believed that would be useful. They were all means whereby the landlord’s obligations as regards the provision of services might be varied, and varied

 

believed that it was no longer practicable to do so under subparagraph (i). Sub-paragraph (iii) stated that ‘fit may provide extra services if this would be useful”. “Services” was plural so, as a matter of grammar, “this” could not refer to the extra services but to the provision of the extra services under the agreement in accordance with subparagraph (iii), which thereby became part of the landlord’s obligations.

  • There was provision in the agreement entitling the appellant to charge for extra services. Clause 1.5.1 provided that the annual service charge was to be based on the landlord’s estimate of the amount it was likely to spend “during the year to provide the services to you”, with balancing payments after the end of the year once the costs actually incurred were known. Once it was accepted that, by operating clause 2.10.1, the landlord could add extra services to those that it was obliged to provide, it followed that they would be included in “the services” by reference to which the annual service charge was to be calculated. The effect of clause 6.3.1 was that changes in rent and service charges might be made without the tenants’ agreement.
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