Can the freeholder unilaterally decide which leaseholders are to pay for works in common areas?

Bossypants

This is a bit of a weird one, would be grateful for any advice.

I own a flat in a converted house. There is one other flat above me, and below is a small business. The layout is a bit unusual: The building is set into a hill, so from the front it looks like the business is on the ground floor, me on the first and the other flat on the second, but from the back it is set up as though I am on the ground floor, the flat above is first floor and the business is in the basement. I and the other flat each have our own entrances at the back, and to get to them we have right of way over a small piece of land which is above the business. Whether directly above or adjacent to the ceiling of the business I'm not sure, but either way, the business has been suffering water ingress from above, and this area has been identified as the culprit and in need of improvement due to poor design (no drainage). Now, I fully accept the need for this to be fixed and am happy to contribute my share, but the freeholder (an independent individual) has informed us that he feels the responsibility for this piece lies solely with the two flats. He has given no reason for this and I disagree, as the space isn't included on anybody's lease, and there has been no suggestion that the flats have caused damage. It seems to me to be a 'fabric of the building' thing, like repairing the roof or painting the exterior, for which all are responsible. There's no sinking fund, we just pay ground rent and insurance annually, with necessary maintenance to be paid for as and when. Historically (before my time), this was done on a 20-20-60 split in favour (or not) of the business, but I can't find this written down anywhere and in the five years I've owned the flat, no maintenance has been done to test it, so that's probably neither here nor there. I would be happy to just go thirds, it seems the fairest.

My question is, can the freeholder unilaterally decide which of the leaseholders are going to be made liable for repairs to common areas?  It seems odd to me, but on the other hand, so far as I can see, the lease doesn't specify how any such split or determination would be made. It just discusses the obligation of the leaseholder to pay the freeholder generally. There is a great deal of discussion about maintenance in it, so I've uploaded parts of it in case anyone wants a look (hope that works, I've never used this before!): https://drive.google.com/file/d/1RDNHQf4Gj4HHxlcuE6Z8p7-SnDCFani1/view?usp=sharing

Any thoughts much appreciated!

davidmcn

It seems to me that you pay the "Tenant's Share" (which I hope is defined on the first page, which you haven't included) of maintenance costs to the structure of the building.

Bossypants

David, many thanks! I went back to the full document to read it again and confirm that it isn't on the first page, only to realise it is, just in the middle of a sequence I wasn't expecting it to be in so I had missed it (my bad!). It confirms that I am responsible for 20% of the cost, which is in line with what I understood had happened historically. Thanks again!

diggingdude

Nice one David

eddddy

I suspect that your freeholder will be responsible for paying the shop's 60% - so they were trying to 'trick' you into paying, to save themselves money.

If the freeholder expects you to contribute more than £250 to the repairs (i.e. your 20% is more than £250), the law requires them to do a section 20 consultation. That's intended to protect leaseholders from being overcharged for unnecessary work etc.
See: https://www.lease-advice.org/advice-guide/section-20-consultation-private-landlords-resident-management-companies-agents/

The downside of a section 20 consultation is that it takes time and is likely to run up fees/costs - and you'll have to pay 20% of those fees/costs.

Bossypants

That's very interesting edddy, many thanks! What makes you think the freeholder would be responsible for the business's share? I did mention to the business that we ought to get the front of the building painted a couple of years ago, as it is looking pretty scruffy, but they made 'we can't afford that just now' noises and so I left it alone as I'm not that bothered. That suggested to me that they would be paying a share, although they might just not have realised what they are responsible for.

davidmcn

It would be normal for commercial leases to make the tenant liable for these costs, so I doubt the freeholder is likely to end up responsible for the business's share.