Q: I am a director of the management company of a block of 16 flats whose shares are divided equally between the current 16 leaseholders, of which I am one. Most of the flats are owner-occupied, but some are let out.
Recently a potential purchaser of one of the ground floor flats, who was confined to a wheel chair, asked MCML to consider providing ramp access to the rear of the building at our expense. We agreed to do this. They also asked us to consider improved access at the front of their potential flat, but we declined to fund this, put conditions on what could be done because of its position in a conservation area, and required full restitution at their expense when the flat was resold.
Subsequently the enquirer dropped out of the purchase for reasons unconnected with this, but the Board have asked me to establish – for future reference – whether we have any legal obligation to modify the block to meet such requirements, or whether we can continue to use our own judgement on a case-by-case basis.
FPRA Chairman Bob Smytherman replies:
Disability – related improvements are an issue on which I respond from a practical point of view. Although I am not a lawyer, I did take a keen interest in this matter when the Government consulted on this issue and opposed S.35 Equality Act which would have legislated on this issue. I and others raised a number of very real practical concerns that would have impacted on the likes of you and me and our management of common parts of blocks of flats.
I am not sure I can take the credit, but following the raising of our concerns successive Governments have not yet implemented this section of the Equality Act. This therefore leaves us with a degree of uncertainty when dealing with such requests from leaseholders or in your case a prospective leaseholder.
My view is there is a very clear difference here. In my block I would have declined a request from a potential purchaser as the flat they were looking to buy would be clearly unsuitable if they could not access it without an adjustment. In my view this would be an ‘unreasonable adjustment’ and should be declined.
If, however, one of your leaseholders became wheelchair-bound and required an adjustment to access their home, then you may take a view that this would be ‘reasonable adjustment’.
The next issue is one of who would pay. The legislation (yet to be implemented) requires the cost to fall to the leaseholder, not the service charge fund, and I would support this view unless the directors can demonstrate that the adjustment would be of benefit to all service charge payers, and certainly not have a negative impact on any of them (for instance if the ramp was to form a ‘trip hazard’ for other leaseholders or visitors).
My advice in the future is that, unless the Equality Act S35 is implemented in full, you should continue to deal with each request on its own merits and take a ‘common sense’ practical position, being sensitive to the disability needs of the person making the request while at the same time balancing the impact on the other leaseholders, both from a practical point of view with regards the adjustment, but also the cost to the service charge of any improvements. Of course bear in mind your lease may not allow for ‘improvements’ as many don’t and only allow for repair / maintenance.