One problem for commercial and residential landlords which is encountered time and time again is to do with the repair, maintenance and upkeep of windows; particularly within older buildings which are purpose built either as flats or office blocks. The question which often arises is can windows be replaced or is repair sufficient? If I replace the windows (and where it is the landlord’s responsibility to do so) can I recover that cost through the service charge mechanisms contained within the tenant’s lease?

The recent Upper Tribunal (Lands Chamber) case of Tedworth North Management Limited (and others) v Miller and others was asked to review on appeal, amongst other things:

1.    whether the repairing covenant contained within a lease had been engaged so as to allow the landlord to replace all of the windows within a residential block; and,

2.    whether the landlord was entitled to recover the cost of such replacement via the service charge mechanisms.

Whilst the case does not establish any new principles, it is a useful reminder of what landlords, and to an extent tenants, should consider when reviewing whether to repair or replace windows.

Background

The appellant landlord is the owner of a purpose built block of 49 flats in Chelsea. The block was built in the 1980s and contained single-glazed Crittall windows set within a wooden sub-frame. There had been discussions over a number of years with the tenants regarding the replacement of the single glazed windows to more efficient double glazed units as well as the general repair to the windows. Some of the tenants, over time, had upgraded their windows themselves with a double glazed version. When it was decided that the block management company would carry out repair works to the windows, such works having been identified as the replacement of the window frames with new powder-coated metal Crittall versions, it was agreed that the landlord would also install double glazed windows to some of tenants’ flats (at their request). The cost of the replacement of the wooden frames was to be charged to the tenants via the service charge provisions within the lease.

The reason for the replacement of the window frames was that some of the windows had been identified as requiring repair, where rot had been discovered, and all of the wooden window frames required redecoration. Whilst it was accepted that the rot could be repaired using a resin to in-fill, and then re-painted, it was thought by the landlord that the economic benefits of replacing the wooden frames with metal ones would be better and cheaper for the tenants long term. For example, scaffolding for the building, at a cost of £82,000 would only be required this once as opposed to every five years when the redecoration was required. In addition, the metal frames were more energy efficient meaning savings for the tenants.

The landlord proceeded to undertake the works and charged the cost of the replacement of all of the sub-frames through the service charge. However, two of the tenants challenged the ability to do so.

The Law

It is well established that, normally, a landlord can only recover the costs of repairs to a building and not the cost of improving it. Further, for the repair covenant to be engaged, and thus the landlord entitled to re-charge the cost of the repair to the tenants via the service charge, there must firstly be an element of disrepair.

The Tribunal’s Decision

Whilst there was agreement that the condition of some of the window frames was poor, it was agreed that the windows could be repaired using the resin in-fill. The landlord argued that as some repair was required, this triggered its ability to be able to repair all of the frames with the new metal ones rather than patch repairing as and when required to do so, over a period of time, which would prove more costly in the long run.

The tenants disagreed and stated that the level of repair required (which amounted to approximately £1,266 for the resin repairs alone) did not justify the replacement of all of the sub-frames with metal ones at a substantial cost.

Whilst it was agreed that there was, no doubt, an economic benefit to the replacement of the wooden sub-frames with the metal ones, the Tribunal found in favour of the tenant. The requirement to repair the windows on the facts of this case did not mean that it was reasonable for the wooden sub-frames to be replaced; therefore, the requirement to repair all of the sub-frames had not been met and the landlord was not entitled to re-charge the full costs of doing so to the tenants.

The Tribunal was quick to point out that the approach taken in this case should not cast doubt on the approach taken by the courts in other cases involving windows and that such cases are fact sensitive.

 Practice points

1.    As ever, and as required by legislation with residential tenants on a long lease, always consult your tenants with regards any proposed works to avoid any issues at a later date.

2.    Ensure that suitably qualified professionals provide detailed reports into the condition of any part of a building if replacement, as opposed to repair, is being considered so that: a) a fully informed and reasoned decision as to the best course of action can be made; and b) if that decision is challenged at a later date, there is suitable evidence justifying how and why the decision was made.