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Service charges and lifts

QUESTION: I own a flat on the ground floor of a modern block. The building has a lift, although I never use it. I asked the managing agent whether owners of ground-floor flats should be charged service charges for the repair and maintenance of the lift. The agent says that the lift enhances the value of the block and of my flat. It also says that I might choose to visit neighbours on the upper floors. The service charge agreement specifically indicates that the management company is responsible for repair and maintenance of the lift. However, the agreement does not indicate how the service charge is calculated, nor how the total costs are sub-divided between each flat. As a result, I am being charged 20 per cent of the cost of maintaining the lift. The agent calculates the service charge on a rate per square foot, and my flat is one of the largest in the block.

The first thing to consider is whether the lease allows the freeholder to recover the cost of maintaining the lift. This depends on the wording and it is hard to know whether you must pay without looking at all the terms. Generally, modern leases are drafted to allow freeholders the maximum flexibility to recover their expenditure. Even where the clauses are ineptly drafted, the courts have tended to back this trend. In one case in 2000 the Court of Appeal held that the owner of a basement flat in West London had to pay for the cost of maintaining staircases on the upper floors, even though she did not have a key to the rest of the block or any right to use those stairs.

The second thing to consider is whether the costs and the agent's apportionment are "reasonably incurred" under Section 19 of the Landlord and Tenant Act 1985. Again, this is generally tested by reference to what a reasonable freeholder would choose to do. Remember that there may be other costs that benefit only the ground-floor flats (such as damp repairs) that leaseholders in the upper flats would resent funding.

If you cannot resolve the problem by negotiation, you should apply to the Leasehold Valuation Tribunal. The applications are relatively cheap and the tribunal generally will not award costs against you even if you lose.

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