Question: I own the lease of a flat in a large 1930s block. Last year the communal heating system failed (for the third time) and it has still not been restored. We have been billed £6,000 in service charges for repairs to the heating and electrics. The landlord says that it cannot begin the work until the money is received. Can the freeholder be made to mend the heating system promptly?

Answer: It depends on the wording of the lease of your flat. There are two separate obligations involved. First, there is the obligation to repair the heating system. Where a block of flats has a communal heating or hot-water system, the lease will almost certainly say that the freeholder (or a separate service company) should repair it. This requirement is frequently expressed as an obligation for the landlord to repair or maintain the system or to “keep” it in repair. In the unlikely situation that your lease does not say who is responsible it may be possible to imply an obligation that the freeholder has to mend the system.

Second, your lease almost certainly requires you to contribute to the cost of repairs through the service charges. Again, there are various ways in which this obligation can be framed. The simple answer to your question is that these two obligations are quite separate. A landlord cannot refuse to start mending a communal heating system simply because the leaseholders have not paid the cost in advance. Even if your lease specifically says that the freeholder's repairing obligation is conditional on the service charges being paid, the courts will not enforce this kind of provision. In the 1985 case of Yorkbrook Investments v Batten, the Court of Appeal decided that such a form of words simply did not work. The landlord must renew or replace an antiquated or unserviceable communal system. Should your landlord not fix the heating, you can issue court proceedings to force it to do so. Usually a court would not issue an immediate injunction.

However, the Court of Appeal said on another occasion in 1985 that a heating breakdown that threatened the health of residents was an exceptional situation justifying an emergency temporary order. If you want something done promptly get medical evidence that the current spell of cold weather is damaging the health of leaseholders.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: brief.encounter@thetimes.co.uk

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