Superior landlords and consultation

It is not uncommon for developments to consist of residential flats, shops, offices, car parks and other premises. And in mixed use developments of this nature, there is often a complicated chain of title with multiple landlords.

Each landlord may have their own distinct set of responsibilities, including responsibilities for repair and maintenance. But what happens with consultation when the superior landlord intends to undertake a project of major works? Who does that superior landlord consult with? Does that superior landlord consult with their tenant (as intermediate landlord), and the intermediate landlord then carry out a separate consultation with their tenants (the residential leaseholders)? Or, alternatively, does the superior landlord consult with all tenants, regardless of whether or not there is a direct contractual relationship?

This quandary was the source of some academic debate. Happily, the debate is now resolved following a decision of the Upper Tribunal.

In the Brunswick case, the Upper Tribunal held that the proper construction of the consultation requirements is that a superior landlord intending to carry out works (or enter into a qualifying long term agreement) must give notice to each of its direct tenants, and each of its own tenants’ subtenants who are liable to contribute towards the costs of the works.

In other words, the superior landlord has to consult with its own tenant (the intermediate landlord), and all other tenants (including the residential leaseholders) will be required to contribute towards the costs of the works.