A landlord was not entitled to charge tenants the costs of replacing wooden window frames with metal ones merely because a small number of them required minor repairs.

Background

In Tedworth North Management Limited v Miller [2016] UKUT 522, a dispute arose over the replacement of window frames in a block of flats. The building had wooden window frames and single-glazed windows in metal surrounds. The landlord agreed with some of the tenants to install double-glazed windows at their individual cost. As part of the works, the landlord also replaced the wooden frames with new metal frames. The landlord charged the replacement of the wooden frames through the general service charge so that all tenants contributed to the costs. Two of the tenants successfully challenged the landlord's right to do so.

Repairs or improvements

Normally a landlord can recover only the costs of repairs to a building, not the costs of improving it. For repair costs to be recoverable, there must first be some element of disrepair. In this case, the windows and metal frames were perfectly serviceable and not in need of repair. Replacing them with more energy-efficient double glazed windows would therefore be an improvement.

However, the landlord argued that there were works required to some of the wooden frames and, as a result, once some works were required, it could carry out the repairs by replacing the wooden frames with new metal ones rather than by piecemeal repairs to the existing frames. The Tribunal disagreed with this analysis. Stressing that each case is dependent on the facts and the extent of the disrepair involved, the Tribunal said that the fact that some minor localised repairs were needed did not justify the wholesale replacement of all of the frames. The decision to replace them was motivated not by the need to repair them but by the desire to install a modern, more energy-efficient, alternative that would result in lower repair bills in the future. The fact that the replacement may be economically justifiable did not allow the landlord to recover the costs as there was not a sufficient degree to disrepair to justify recovery in this case.

A sting in the tail

There was a sting in the tail for the landlord. The general works to the flats required scaffolding to be erected. This would have been required even if the window frames were not being replaced. The landlord argued that the full costs of the scaffolding should be charged to the tenants. However, the Tribunal said that where general costs were incurred in relation to different phases of works, it was customary to apportion the general costs between the different phases of the works. Accordingly, the landlord could not recover through the service charge the proportion of the scaffolding costs that were apportioned to the phase of the works relating to the windows and window frames.

Implications for energy efficiency

This case is of interest as it demonstrates that landlords who make energy efficiency improvements to their buildings will not necessarily be able to recover the costs from their tenants, even where the cost of installation will be justified by lower maintenance costs and energy bills in the future. Although this case relates to a residential building, the law will be the same for commercial buildings. Landlords cannot charge their tenants under the head of 'repair' unless there is disrepair in the first place. Windows and window frames are not necessarily in a state of disrepair merely because they are single-glazed.

This is something that landlords will need to bear in mind when the first phase of the Minimum Energy Efficiency Standard (MEES) takes effect on 1 April 2018, which is less than 15 months' time. From that date, landlords of commercial buildings will not be allowed to let a building with an EPC rating of F or G unless all cost-effective energy-efficiency improvement works have been carried out (ie those that pay for themselves within seven years), or one of the exemptions applies.