Both landlords and tenants should always be alert to the service charge they levy or pay under the terms of their leases.
A recent case (Friends Life Management Services Limited vs. A & A Express Building Limited) was a useful reminder that a tenant's liability to pay service charge for works the landlord was proposing to do, did not extend to works where that cost would not be incurred by the landlord until after the date of termination of the lease.
Facts
The tenant had rented office and parking facilities for a 15 year term which contractually expired in March 2013. The tenant successfully exercised a break clause ending its lease in March 2010.
The lease required payment of a fair proportion of sums already incurred or anticipated during future service charge periods. There was no specific reference to a reserve or sinking fund in the lease.
The service charge year under the lease ended in December of each year and the landlord was undertaking a programme of extensive works to the building costing in excess of £1M.
These works were carried out between 2010 and 2011.
The dispute revolved around whether the tenant should be liable for the full cost of the works for 2010 and 2011 despite the fact that, when the lease ended some of the works had not been carried out or paid for by the landlord.
The tenant argued that it should only be responsible for costs incurred up until the time that it had terminated the lease in March 2010.
What did the Court decide?
- The tenant remained liable for the service charge up until the end of the financial service charge year in which had it terminated the lease (December 2010). This included service charge costs incurred by the landlord in that year but not service charge costs to be incurred in the following service charge year.
- When a lease ends (whether at the end of the lease term, by exercise of a break or by forfeiture) the tenant's liability should only be for the service charge period in which the lease was terminated notwithstanding that the lease was for a longer contractual term.
- The service charge for the year in which the lease had been broken should be apportioned on a daily basis up until the time the lease was determined. The Court implied wording into the lease to make the basis of that apportionment clear.
- The payment by the tenant on account of future expenditure was credited against the apportioned sums which were due.
Conclusion
The court will usually look very carefully at the wording in the lease to ensure that it correctly interprets the intention of the parties.
The court was not prepared to allow the landlord to retain anticipated service charge costs where the related expenditure had not been incurred during the last service charge period of the lease, even though the lease envisaged recovery of future costs.
If the lease had made specific provision for a reserve and sinking fund to be set up and for anticipated service charge costs to be applied towards that fund the court may well have reached a different conclusion.
Tenants should carefully check the sums that they are required to pay to make sure that they are not overcharged.
Both landlords and tenants would be well advised to ensure that:
- their service charge provisions clearly reflect what is intended;
- leases make any required apportionments clear; and
- any maintenance programme reflects the service charge recoverable from the tenants and factors in any forthcoming lease termination dates.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
