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ePaper created 2015-05-28, 18:34:54 | version 1.33.0
caretaker. However the Upper Tribunal rejected any attempt to limit the natural definition of common parts by requiring there to be an obligation on the part of the landlord to provide a resident caretaker. The Tribunal made it clear that it is not a prerequisite of a common part that the landlord is legally committed to providing or retaining it. Thus the test of whether the caretaker’s flat is a common part is based on actual use rather than on the obligation of the landlord in relation to it. The court favours a generous understanding of the concept of common parts and accepts that a caretaker’s flat is a common part which is necessary for the tenants to acquire for the proper management and maintenance of the building. Conclusion The judgments support the principle that the 1993 Act was passed for the benefit of tenants to acquire the whole of the building which contains their flats including the common parts and that it is the duty of the courts to confer on tenants those advantages which Parliament intended them to enjoy. The landlord in Barrie House is seeking leave to appeal the decision to the Court of Appeal on two grounds. The first is that the test of what makes a caretaker’s flat a common part should be based on legal obligation rather than actual use. The second is that the correct date for determining the landlord’s entitlement to a leaseback is the date of the acquisition of the freehold rather than the date of the claim. If successful, this latter point would allow a landlord (assuming it was able to do so) to put the caretaker’s flat to some other use, not for the benefit of the tenants and so beyond reach but eligible for a leaseback. As always, watch this space.... “…it is the duty of the courts to confer on tenants those advantages which Parliament intended them to enjoy.”