Trustees of Gunter Estate v Tristem
Despite an inapt clause in a lease which suggested, when read alone, that a tenant was not liable for contributing towards the maintenance charges for those common parts of a building which she was not entitled to use, the overall intention of the parties was clearly that the tenant would pay a specified fixed proportion of the costs incurred by the landlords.
Defendant's appeal from the order of HH Judge Pillay made 5 March 1999 at West London County Court refusing her application for declarations that on the proper construction of a lease she was not responsible for part of the maintenance charges claimed by the claimant landlords. The claimants were the freehold owners of a property in London SW10 which had been divided into five self-contained flats. In 1983 the defendant's predecessor was granted a tenancy of the basement flat for a term of 25 years ('the lease'). Entry to the basement flat was by way of a self-contained entrance from the street. Entrance to the other flats was by way of the front door to the main part of the building, which led to a communal hallway giving access to the ground floor flat and a staircase leading to the remaining three flats. The lease contained tenant's covenants in clauses 4(2)(A) and (B) to pay a contribution (specified as 20 per cent) towards maintenance charges, both clauses making reference to the landlords' obligations under clause 5. Under clause 5(2)(ii) the landlords were required to maintain the entrances, passages, landings, balconies and staircases "enjoyed or used by the lessee in common". Under clause 5(4) the landlords were required, once every five years, to paint all interior parts of the common parts of the building whilst clause 5(5) required them to keep clean and properly lighted the entrance halls, passages, landings, staircases and other parts of the building used by the tenant in common with the owners and lessees of the other flats. Under clause 5(10) the landlords were required to carry out all works which in their absolute discretion were necessary or advisable. The landlords claimed the sum of #4,148 from the defendant pursuant, inter alia, to the provisions of clause 4(2)(A) and (B). Schedules to the lease provided, inter alia, that the tenant "did not have the right to use any part of the building other than the demised premises and the hall staircase and passages leading thereto and then only for the purpose of access thereto". There was no access to the basement flat through the main part of the building and the defendant counterclaimed, seeking a declaration that on a proper construction of the lease she was only obliged to pay the maintenance charge based on expenditure with respect to those parts of the building which she was entitled to use or enjoy in common with other lessees or owners of the flats in the property. The judge rejected the defendant's contentions and she appealed.
(1) There could be no doubt that the landlords' intention was for the defendant, in common with the other tenants, to pay a proportionate contribution to the works which the landlords were obliged to undertake in maintaining the building and it was of no coincidence that the proportion was specified as 20 per cent for each of the five flats. (2) That being the intention there was no doubt that the words used in clause 5 were not apt to achieve that result. Free-standing, the provisions in clauses 5(2)(ii), 5(4) and 5(5) meant that the defendant could not be liable in respect of those parts of the building she had no right to use. (3) But the provisions did not stand alone. In particular clause 5(10) required the landlords to carry out all works which they considered necessary. Accordingly the landlords were entitled to include in the maintenance charge works which they considered, in their absolute discretion, were necessary notwithstanding that they were obliged to carry them out by virtue of clauses 5(2)(ii), 5(3) and 5(5).