Service charge apportionment – the surveyor’s decision is binding. Or is it?

A recent service charge appeal at the Upper Tribunal will prevent landlords from relying on their surveyors’ advice alone when it comes to determining service charge apportionment. Brady Solicitors assess the impact of this leaseholder-friendly decision.

In the case of Windermere Marina Village Ltd –v- (1) Ian Wild and (2) Gillian Lesley Barton, the tribunal considered – among other things – a clause in the lease concerning the apportionment of service charges.

The clause stated that the leaseholders were “to pay a fair proportion (to be determined by the Surveyor for the time being of the Lessors, whose determination shall be final and binding) of the expense of all communal services.”

The key point to note in this is that the determination was to be made by the Landlord’s surveyor.

Section 27A comes into play..

The liability to pay service charges is governed by section 27A of the Landlord and Tenant Act 1985.

Within this part of the Act, Section 27A(6) outlaws arrangements (in leases for example) preventing applications to determine service charge payments.

In the case of Windermere Marina Village, The Upper Tribunal found in favour of the leaseholders and held that the clause in the lease did fall foul of section 27A(6) as it provided for a determination “in a particular manner”.

The Tribunal was thereafter required to hear the evidence and make its own determination regarding the payment of service charges at Windermere Marina Village.

This Upper Tribunal case is obviously a tonic for the rights of leaseholders and strikes a blow for some “landlord friendly” lease drafting along the way. It will also prevent landlords from placing sole reliance on their own surveyor to determine service charge apportionment.

Service charge expertise

Brady Solicitors can help you get your leases right to start off with as well as providing the expertise to help you rectify difficult service charge situations.

Contact a member of the Brady Solicitors team on 0115 985 3450 or drop us an email and we’d be pleased to chat through your options.

You can read a full review of all aspects under consideration at the appeal in the Law & Lease blog.

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With hundreds of years’ worth of combined experience, our experts have dealt with nearly every leasehold property matter you can imagine. If you’re currently in need of legal support or advice, please get in touch.

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