© 2025 News On The Block. All rights reserved.
News on the Block is a trading name of Premier Property Media Ltd.
© 2025 News On The Block. All rights reserved.
News on the Block is a trading name of Premier Property Media Ltd.
Many leases are, essentially, defective. Common examples include leases where matters such as placing insurance or allocation of responsibility for maintaining the doors or windows are absent. This may be because the lease was poorly drafted at the outset or because it was drafted using a standard precedent used across a developer’s entire portfolio.
One method of resolving issues arising from a defective lease is by seeking a variation to the lease. Generally speaking there are two ways in which leases can be varied: either through a commercial agreement between the parties to the lease (this includes any lenders the parties may have), or by making an application to the First Tier Tribunal (FTT) seeking a Variation.
There are a number of grounds under which an application can be made to the FTT.
1. Application to Vary an Individual Lease: Under Section 35 of the Landlord and Tenant Act 1987 (LTA 1987) any party to the lease may apply for its variation if the lease fails to make satisfactory provision for one or more of the following:
Repair or maintenance of the building;
Repair or maintenance of installations and services;
Recovery of expenditure under the lease / recovery of service charges.
When making applications under Section 35, it is important to remember that the FTT applies an “objective test” as to whether or not the lease can be considered to “fail to make satisfactory provision” for something. Therefore, the fact that the applicant would “wish” the lease to be drafted differently is simply not enough.
2. Application to Vary Other Leases: Once an application to vary a lease has been made (original lease/application), any other party to the lease may apply to the FTT asking to vary the other leases if an order is made varying the original lease. It must be shown that it would be in the respondent’s interest to have all the leases varied in the same manner.
The lease must share the same landlord although does not necessarily have to be in the same building as the original lease / application. For these reasons, applications such as these are usually made by landlord parties. The application can be made pursuant to Section 36 of the LTA 1987.
3. Application by Majority: In cases where one lease is defective it will be fairly common for most or all other leases of flats in the same building to also be defective. In such a case an application for variation of some or all of the relevant leases may be made if the application is supported by a sufficient number of parties. Such an application can be made pursuant to Section 37 of the LTA 1987 and all leases must be with the same landlord.
[extra:quotes:boxoutcopy=1]
If the FTT is satisfied that the grounds for an application under the relevant section have been exercised, a Variation Order will be made. Although the FTT will normally make an order in accordance with that submitted by the applicant, it does have powers to make variations as it deems fit.
Proposed variations should be drafted by a legally qualified person in order to reduce the prospect of delay, re-drafting and amending. The last thing you need is a lease that is more defective after the variation than before.
Yashmin Mistry is a Partner at JPC Law