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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I own a leasehold top floor in a 14 flat block (balance of

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I own a leasehold top floor penthouse in a 14 flat block (balance of 999 year lease). I have two balconies ( actually roof terraces which are the roofs of people below) My lease is silent on the spacific repair/ maintenance of these terraces. The lease is specific that the management co must maintain all the common fabric of the building. Historically, 1997/2003/2008 the management co have repaired and repainted these spaces at common cost and there is past management co written commitment to be liable for repairs. Management co ( new directors and managing agents) now state that as the outline of my demise runs along the leading (outer edge) of my balconies/terraces, they are within my demise and thus all maintenance and repair is my responsibility. How does past behaviour and written acceptance of responsibility now square with this new interpetation? What are my options for challenge to settle the matter definatively and for the future?
Thank you
David ******

In the absence of anything to the contrary, and in the absence of any specific repairing covenant in the lease and in the absence of any description in the lease as to whether these balconies are structural or not it is highly likely that if there was an argument in court the court would decide that the doctrine of mutual benefit and burden applied. That is a doctrine whereby anyone that uses something also has to repair it.

You have the benefit of using the terrace and the person underneath has the benefit of using it as part of their roof or ceiling. Therefore, the maintenance of it would be paid for in proportion to the benefit received which is probably going to be 50% for each of you.

The management company could possibly maintain that they were under some kind of mistaken impression that they were previously liable for the repairs which is why they did them. So, whilst it is an argument, it is by no means decisive.

Can I clarify anything for you?

Customer: replied 1 year ago.
Thanks for your interpretation based on use and utility. I'm surprised past behavior by magt co has no bearing on current or future.
As the lease is very specific that the roof structures are absolutely common fabric of the building, does the "engineering/ build" structure detail come into play in that architects and building surveyors have defined the physical constructs of the roof terraces as part of the common roof build, and if this is so, then surely maintenance falls to the management co?
David Barker

The difficulty with interpreting the roof structure as common fabric is that this is not just roof structure. It is a roof terrace on which you can walk and which has the potential for wearing out as a result of walking on it. I am not saying that is what has happened but you can see the potential problem. However if the lease includes roof terraces as part of common roof build then it is the landlord or management company that is responsible.

Just because any architect or building surveyor say that the roof terraces are part of the structure would only be good evidence if the whole issue got to court to have the matter determined by the judge.

Custom and practice and what has gone before is also good evidence that the management company previously accepted these were in fact part of the structure of the building and hence, maintainable by them but they can always say they maintained them by mistake and you are not able to rely on their mistake to continue to enforce them doing the repairs.

If they steadfastly refuse to maintain the area than the only alternative is to take them to court for breach of landlords repairing covenant and for the court to decide whether it is a breach and within their remit, or not.

Please don’t forget to rate the service positive. Thanks.

Best wishes


Customer: replied 1 year ago.
Thanks for your very clear information on the balcony/roof terraces. I understand the situation clearly now and will soon rate your service as requested. Before I do so there is a related but additional question. The outer edges of the balconies (at the line of the demise) are made safe (40 feet up in the air) by balustrades. These balustrades are wooden rails and frames and contain glass panels. Apart from the multiple buildings front doors, these rails are the only external exposed woodworks to the exterior of the building. The lease is very specific in the management co maintenance responsibilities, that all external woodworks must be painted at least once in every three years. This has not happened with the balcony rails, despite letters from me advising that they were decaying and in need of treatment. In fact they were last painted in 2008. They are now rotted and need extensive repair or replacement.. I contend that this is a breach of the management co lease performance and thus should be attended to by them, despite these being on the edge of the balcony. The management co will resist this because the painting work is expensive - not the actual painting but the high level access requiring either scaffolding or cherry picker access. It is worth pointing out that historically the management co have painted the rails since 1985 but ceased in 2008. How would you interpret this situation as separate to the balcony floor aspects?
Sincere thanks
David Barker

I agree with you that if the balustrades are wooden there is a covenant for the management company to be responsible for painting external woodwork, then the balustrades are their responsibility.

You would have to prove that the lack of maintenance has caused them to rot. That might not be as easy as it seems because old-fashioned wooden window frames used to rot even if they were painted.

The management company cannot use the same argument that they painted the balustrades by mistake quite simply because the obligation is in the lease.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Very many thanks for your answers on both balconies and balustrades. I understand fully your responses and logic. I will take the points up with the management co armed with your responses. A job very well done and many thanks again. I will rate the responses as requested
David Barker