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Intermediate tenant must be able to justify service charges passed on to sub-tenants as reasonable

Intermediate tenant must be able to justify service charges passed on to sub-tenants as reasonable

Tenants passing on service charges (which have been charged by the landlord) to their residential sub-tenants should ensure they can prove the service charges are reasonable, if necessary by obtaining relevant information from the landlord.

A landlord let a mixed use property to a tenant. The tenant later leased residential parts of the building to sub-tenants, becoming their landlord.

Under landlord and tenant law relating to residential property, service charges charged to residential tenants by their landlord must be reasonable. This includes charges requested before a landlord has actually incurred particular costs – for example, when a landlord makes a service charge to create and maintain a ‘sinking fund’, or asks for money in anticipation of planned works at the property.

In this case, the landlord charged the tenant service charges in order to create a sinking fund to pay for decoration of the exterior of the building at some stage in the future. The size of the fund doubled over time but the tenant paid the service charges without asking the landlord to justify them.

The tenant then passed a proportionate part of the service charge on to each of its residential sub-tenants in accordance with their leases. However, the sub-tenants argued that the charges were not reasonable. The tenant argued that once it had paid service charges demanded by an ultimate landlord, the charges should be presumed reasonable.

The Upper Tribunal ruled against the tenant. It ruled that “it is not sufficient for the [tenant] merely to say: I have paid this sum to the freeholder and so it is reasonable for me to recover it from you”. Rather, a tenant must justify the reasonableness of any service charge it passes on to sub-tenants and should, if necessary, make sure its landlord provides the necessary information to do so – preferably by requiring the landlord to do so in its lease to the tenant.

The tenant was therefore unable to recover from its sub-tenants the full amount of the service charge it had already paid to its landlord.

Operative date

• Now

Recommendation

• A tenant passing on service charges (charged to it by its own landlord) to its residential sub-tenants should ensure it can prove the service charges are reasonable, if necessary by obtaining the information it needs from the landlord

Case ref: Balkhi v Southern Land Securities Ltd [2016] UKUT 239

Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

Contact Helix Law on 01273 761 990 or email: [email protected]