Court of Appeal finds for housing association over grounds maintenance service charge

A social landlord was entitled to impose an extra charge on residents for grounds maintenance in a case affecting some 3,400 tenancy agreements, the Court Of Appeal has ruled.

In a case brought against Curo Places by tenant Anthony Pimlett, Lord Justice David Richards said the issue turned on the meaning of ‘extra’ services.

Although the case involved only £77.98 a year for Mr Pimlett, across Curo’s whole estate the charges amounted to nearly £1.16m by 31 March 2021.

Mr Pimlett became the tenant of a one-bedroom bungalow in a sheltered housing scheme in Bristol in 2008.

Curo maintained the communal grounds and until 2017 did not levy a charge for this on tenancies commenced before April 2010, after which the standard tenancy terms had changed.

When Curo sought to charge Mr Pimlett he said it had no power under the tenancy agreement to add a chargeable service, and that the term would anyway not be binding on him by virtue of the Unfair Terms in Consumer Regulations 1999.

He asked the First Tier Tribunal for a determination under section 27A of the Landlord and Tenant Act 1985 of his liability to pay for grounds maintenance on both the terms of the tenancy agreement and the 1999 Regulations, but the FTT decided only the issue of construction, ruling in Mr Pimlett’s favour.

The Upper Tribunal allowed Curo to appeal but dismissed this on the construction point, though gave permission to take the matter to the Court of Appeal.

Curo argued it was entitled to provide grounds maintenance and charge for this as an extra service having carried out the consultation required.

The Upper Tribunal held that this was not permitted because the tenancy agreement clause concerning ‘extra services’ meant services that were extra to those being provided by the landlord.

In Curo Places Ltd v Pimlett [2020] EWCA Civ 1621 Lord Justice David Richards said: “I am unable to agree that this is the natural and ordinary meaning of those words, whether in the context of the tenancy agreement read alone or (as it must be, so far as appropriate) in the factual context in which it was made.”

Reading the relevant part of the agreement as a whole it was clear the landlord was able to vary it by adding services without the consent of the tenants subject to prior consultation with them.

“If the purpose…were to enable the landlord voluntarily to provide extra services, it is hard to see why it should be included at all, still less why there should be a requirement for prior consultation with the tenants,” he said.

David Richards LJ remitted the case to the FTT concerning the application of the 1999 Regulations.

Mark Smulian