Q&A - Repairing an inoperative lift in a block of flats

Brian Neal

ANSWER

Generally the Tribunal may only vary a lease if it fails to make satisfactory provision for things such as (i) repair or maintenance of the flat and/or building (ii) insurance (iii) repair of maintenance of any installations which are reasonably necessary to ensure that occupiers of the flat enjoy a reasonable standard of accommodation or (iv) the provision of services etc.

The general test applied by the Tribunal in lease variation applications is objective: the fact the applicant wishes the lease to be drafted differently is not enough.

 From the information provided I suspect the application is made under Section 37 of the Landlord and Tenant Act 1987 Act – supported by 75% of the parties with no more than 10% objecting.

 If this is the case, an application under Section 37 may only be made if the object to be achieved by the variation cannot be satisfactorily achiever unless all the leases are varied to the same effect.  From this it would appear that an application under Section 37 of the 1987 Act is not restricted to the ground and objective test mentioned previously.

Orders Varying a Lease:

The Tribunal’s power to vary a lease is subject to three important factors:

1. There is a power to order that any party to the lease pay any other person compensation for any loss or disadvantage they are likely to suffer as a result of the variation;

2. If there would be substantial prejudice to any person and where an order for payment would not be adequate compensation the Tribunal must not order a variation;

3. The Tribunal may also refuse to make an order if for any other reason “it would be reasonable in the circumstances”.

Have these counter-arguments been explored in your particular case?

Yashmin Mistry
Partner, JPC Law