Commercial service charge

Commercial service charge – a tenant’s guide

Commercial tenants will know that the rent they pay is only one part of the overall cost of occupying their premises.  A service charge is another significant cost and, unlike rent, it can fluctuate from year to year depending on what the landlord intends to spend on maintenance and other services.

Commercial tenants keen to keep costs under control need to keep a close eye on service charge demands made by their landlords.  A well-drafted lease should have a clear timetable for landlords to produce budgets and to reconcile them with actual spend each year, as well as limiting the things for which the landlord can charge.  We can help you keep track of service charge demands and explain your options if you think you are being asked to pay too much.

‘Service charges can be very contentious,’ explains Kimat Singh, head of the commercial property team with Kerseys Solicitors. ‘Tenants do not want to pay for things that feel like an upgrade to the property but there can be a fine line between an upgrade and sensible planned maintenance.’

Kimat Singh highlights why it is important for service charge provisions to be well drafted, and for tenants to get good legal advice on how to interpret them in practice.

What the service charge should cover

Service charges arise on properties where some parts are let to tenants and some parts, such as structure and common areas, are retained by the landlord.  As a minimum, the landlord will be obliged to maintain those areas and to provide shared services to the common parts, such as heating, lighting, and water, as well as cleaning and refuse disposal.  The landlord will want to recover these costs through the service charge, which is shared between the tenants.  Depending on the nature of the property, the services may be quite limited or could be much more extensive.  The key point for a tenant is that the landlord should only be charging for services that are necessary and represent good value for money and, in particular, the landlord should not be making improvements to the property at the tenants’ expense.

What to look for in your lease

If you are negotiating a new lease, your solicitor will make sure the service charge provisions are fair.  There is a statutory code which sets out requirements and recommendations for how a landlord’s surveyor should approach commercial service charges.  Although the code is not binding on landlords, it is a useful benchmark of good and fair practice.

The lease should set out the services for which the landlord may charge and also the mechanism for the landlord to demand and recover the costs.  The usual arrangement is for the landlord to produce a budget for the year, based on estimated expenditure.  Then tenants will pay quarterly instalments on account, based on that estimate.  At the end of the service charge accounting year, the landlord will reconcile actual expenditure against the estimate and produce a final budget.  Tenants may have to make an additional balancing payment at that point or, if the actual expenditure is lower than the estimate, the overpayment will be credited against next year’s service charge.

There are some key points your solicitor will be looking for:

• The basic services will be fixed, but the landlord will want some discretion to decide on what other expenditure is required. That should be limited to what is reasonable and can be justified as good estate management.
• The simplest approach to a fair apportionment between tenants is to allocate costs based on the relative floor area occupied by each tenant, but that might not be fair if tenants do not use all services equally. Whatever method is used, your solicitor will make sure that the landlord picks up the notional share for any vacant units, and if there has been any special deal with one tenant that will not result in the rest of the tenants paying more.
• There should be a list of excluded costs, which the landlord is never entitled to recover via the service charge. The list will vary depending on the nature of the property, but it will typically include things like capital expenditure, the costs the landlord incurs in letting units and enforcing other tenants’ obligations and often advertising and promotion.  The trickiest area is setting out when a landlord is entitled to recover the cost of replacing an item instead of repairing it and whether that replacement may be something better than what was there before.  Leases usually deal with this by allowing replacement where the original item is beyond economic repair, but reaching agreement about whether an improvement is legitimate and cost-effective can be very difficult.
• Minimum energy efficiency standards for commercial leases mean that landlords may need to make ‘green’ upgrades to improve energy performance and reduce the property’s carbon footprint. There is still no clear market position on whether the landlord can recover any of these costs through the service charge.  It will depend on the nature of the property and the attitudes of landlord and tenant but it is definitely something your solicitor should cover in the lease.

Dealing with disputes

Whatever the lease says, it is common for tenants to challenge their landlord’s service charge demands.  If you think you are being charged too much, your solicitor will be able to advise you on how to raise a challenge.  The lease should have a timetable for querying charges, inspecting invoices and other records, and it is important that you act within deadlines.  You should check that everything demanded is in the list of agreed services and is reasonable.

If you have a fairly short lease or are close to the end of a longer one, your solicitor may be able to argue that what you pay should reflect the likely benefit you will get and that you should not, for example, be charged a full share of a replacement air conditioning system intended to last 15 years.

Even if you are disputing an item of service charge, you may still have to pay it in the first instance.  This will depend on what your lease says, but the Supreme Court recently decided that the fairest position for both landlord and tenant is that the tenant should ‘pay now and argue later’.  You may ultimately recover some of your payments but the landlord will not be out of pocket in the meantime.

How we can help

Every service charge arrangement is different and we can give you the advice you need to make sure you are getting value for money.  For further information, please contact one of our commercial lawyers at Kerseys Solicitors in Ipswich at [email protected] on 01473 213311, Kerseys Solicitors in Felixstowe at [email protected] on 01394 834557 or Kerseys Solicitors in Colchester at [email protected] or telephone 01206 584584.  Alternatively visit our website and click “Call Me Back”.