Q: The Residents have been advised by our managing agents that the freeholder would like the 18 leaseholders to pay for the resurfacing of the rear car park, as the surface has deteriorated and has a number of pot holes in it.
We have been advised by the managing agents that the lease states that each leaseholder has responsibility for maintaining the rear car park, as each resident has a right of way across the car park and the rubbish bins for the block are located within it, which are emptied on a weekly basis by the local council briefly parking their lorry in the car park.
However, for some years the freeholder has operated a commercial business from the rear car park, by letting the car parking space and garages to external people/companies such as the local taxi rank. Due to the heavy usage of the car park by these vehicles coming and going across the car park the surface has deteriorated significantly and in the winter months, flooding occurs in some parts.
The managing agent has recently informed us that he is due to present the costs of the quotes he has received to undertake this work to the freeholder and he expects that he will ask the residents to pay the cost of this work (which for a full resurface is £6455 +VAT).
The residents object to paying for this work, as they have little benefit from the car park and the freeholder is running a commercial business, presumably gaining income, that could pay for the work. Can you please advise us of what rights we have to challenge and object to this matter and what action we could take to address it.
FPRA Hon Consultant Mark Chick replies:
We understand that the issue concerns the proposed contributions to the cost of re-surfacing a common car park which in your view has a degree of commercial use which has been attached to it by the freeholder. This intensification of use has in your view resulted in a higher level of wear and tear to the surface of the car park and you wish to query whether it is possible to challenge any proposed contribution to be made by the residents to this.
Under the provisions of clause 6 (A)(III) the Landlord is obliged to maintain the forecourt of the building which presumably includes the parking area.
The fourth schedule allows the Landlord to recover the costs of its obligations incurred in complying with its obligations under the lease which include the ‘roadway path, forecourt gardens and other common parts of the estate’.
It is not clear to us whether the Landlord owns adjacent property as the right to use the common area in question. However, we would recommend that we are instructed to review the freehold title to see whether Deeds reveal any obligations towards the potential for a contribution towards the costs in repair in common areas.
The Lease itself contains an obligation to obtain a certificate from the landlord’s managing agents as to the amount of expenditure incurred in maintaining the estate. The managing agents are given the role of experts in determining the apportionment of any charges to be re-charged to the estate.
The Lease at Clause 2 (3B) sets out a requirement that if the landlord and tenant cannot agree as to the proper proportion of any charges to be paid that the matter will be determined by the Landlord but that if other parties are unwilling to accept the determination then there is the right to have the matter determined by an independent surveyor. Accordingly, the provisions of this clause should be invoked.
Given that the managing agent also has a power in relation to the certification and allocation of expenditure, then you should seek to ascertain their likely views on this prior to them preparing the service charge accounts.
We would also suggest that you consider other options which may include non-payment of part of the service charges in the event that the matter cannot be resolved.
Question submitted May 2018