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Balcony Repairs in Leasehold Flats

Who is responsible for repairing the surface of my balcony?

Balcony repairs can cause disputes because a balcony can feel like part of the leasehold flat, but it is also part of the buildings external structure. When something fails (water damage, cracked concrete, damaged floor surface), responsibility for attending to the repair will depend on what the lease says.

Start with the lease

Most leases will distinguish responsibility between:

• The landlord/freeholder – usually the structure and exterior of the building (and common parts), often paid for via the service charge.
• The flat owner – usually the internal parts of the flat and balcony surface finishes.

Look for definitions such as “structure and exterior”, “retained parts” or “maintained property.” That wording is key.

Balcony parts: structure and finishes

A balcony has different layers, and the answer often changes depending on what the repairing issue is:

• Concrete slab/structural platform. This is often treated as part of the building’s structure, so commonly the landlord’s responsibility.
• Waterproofing layer. This can be the grey area. If it is part of the building’s external waterproofing (protecting the building), it may be the landlord’s responsibility. If it is more connected to the balcony finish (for example without tiles or decking installed on top), it may fall on the flat owner depending on the lease wording.
• Tiles, decking, coverings (surface finishes). Leases will usually treat such coverings in a similar way to flooring inside the flat. Maintenance of these items will usually fall to the flat owner.

The balcony is excluded from the demise

A lease can give the flat owner simply a right to use the balcony as part of their demise, with the landlord responsible for structural and external parts. Some leases will have hybrid wording where the balcony is excluded from the demise but where an obligation is placed on the flat owner to maintain the surface area.

Remember too, that a flat owner may be liable for damage caused from breaking terms of the lease. For example allowing plant roots or plant pots to damage the water proofing surface.

Why a surveyor can matter

Even where the lease seems clear, a surveyor can confirm what has failed (slab, waterproofing, or surface finish). That factual point often decides which lease clause applies.

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Claims Under the Inheritance (Provision for Family and Dependants) Act 1975

English law is famous for enshrining the principle of testamentary freedom, which means that people can leave their wealth on death to whomever they want. Most people assume that a valid will is final. However, this is not absolute as English law recognises that certain people should not be left without reasonable financial support simply because a will (or the intestacy rules) fails to provide for them.

The Inheritance (Provision for Family and Dependants) Act 1975 (often called “The 1975 Act”) allows eligible individuals to apply to the court for financial provision from as estate where reasonable provision has not been made.

What Is a 1975 Act Claim?

A 1975 Act claim is not a challenge to the validity of a will, which is a separate category of claim explored in the following article: How to Challenge a Will. The will may be perfectly valid and still give rise to a claim under the 1975 Act.

Instead, the Act allows the court to intervene where the outcome of an estate is financially unfair to certain people the law considers deserving of protection.

The court’s focus is on ‘reasonable financial provision’, not equality or moral entitlement. Therefore, merely being disappointed beneficiary is not enough to establish a claim, although many such persons might be able to bring a claim under the Act.

Who Can Make a Claim?

Claims can only be made against estates where the deceased died domiciled in England and Wales.

Only certain categories of people are entitled to bring a claim under the Act, including:

• A spouse or civil partner
• A former spouse or former civil partner (provided they have not remarried and were not excluded by a clean break order)
• A cohabiting partner who lived with the deceased for at least two years immediately before death
• A child of the deceased (including adult children)
• A person treated as a child of the family
• Anyone who was financially maintained by the deceased immediately before death

If you fall outside these categories, then you may not be able to make a claim under the 1975 Act. However, it is always recommended to seek professional advice on your potential standing to make a claim and whether alternative claims such as a will challenge might be suitable.

What Is “Reasonable Financial Provision”?

The crucial question for the court to decide is: has the estate made “reasonable financial provision” for the applicant? However, there are two different standards of reasonable financial provision, which depend on the category of applicant:

• For a spouse of civil partner, the court can consider what would be reasonable in all the circumstances, which would be something akin to a divorce settlement.
• For all other claimants, provision is limited to what is reasonable for their maintenance.

The former is much more generous than the latter and ‘maintenance’ is strictly limited to reasonable:

• housing costs;
• living expenses; and
• basic financial security.

Maintenance does not usually extend to luxury or windfall inheritances, unlike claims made by spouses and civil partners. In particular, where adult children are able to provide for themselves, maintenance claims for reasonable financial provision under the 1975 Act are likely to be weak.

When Might a Claim Arise?

Common situations include:

• A long-term partner or spouse is left nothing under a will
• A minor child is excluded despite financial need
• A dependent is left without housing or income
• An estate passing entirely to distant relatives or charities

More complex situations include wills which establish a life interest trust for the surviving spouse with the remainder passing on their death to children of a previous marriage. These structures are good in theory as they can provide for a surviving spouse whilst keeping wealth within the deceased’s natural family. However, they often encounter problems in practice where:

• relations between different branches of the deceased’s family break down, such as between stepmother and step-children; and/or
• there are insufficient income producing assets to provide the surviving spouse with reasonable financial provision.

The Private Wealth Disputes Team at Quastels is adept at advising clients who feel trapped within post-death trust structures and often obtaining for clients the clean break and lump sum payment that they need to move on with their lives after a significant family bereavement.

Time Limits for Bringing a Claim

The 1975 Act claim must normally be issued within six months of the grant of probate or letters of administration. However, this is not a hard deadline like civil limitation periods, and the court has a wide discretion to allow out of time applications. However, this is far from guaranteed and should not be relied upon.

Given the short window for bringing a claim under the 1975 Act, early legal advice is essential to protecting your potential claim.

What Will the Court Consider When Assessing Claims?

The court takes into account a range of factors, including:

• The claimant’s financial needs and resources
• The size and nature of the estate in dispute
• The needs of other beneficiaries
• The deceased’s obligations and responsibilities
• Any physical or mental disability
• Any other relevant circumstances

The court does not simply rewrite the will but aims at fairness and can be swayed by strong moral claims. Each case turns heavily on its own facts and judges have a wide discretion to make awards.

However, how you present your case can be very important to its outcome and for this reason professional advice should be sought from early on to ensure a strong and consistent case is put forward from the start.

What Can the Court Order?

If a claim succeeds, the court may order:

• Lump sum payments
• Regular maintenance payments
• Transfer or occupation of property
• The sale
• Variation of trusts
• Sale of estate assets

The above notwithstanding, the court will usually be persuaded to order a clean break where relations between family members have broken down, meaning parties can expect to receive significant lump sum payments.

It is worth noting that the 1975 Act does not give the court jurisdiction to alter pensions benefits, although these can and often are taken into account when the court makes an award for reasonable financial provision.

Do Claims Always Go to Court?

1975 Act claims are particularly suited to alternative dispute resolution by way of early settlement negotiations or mediation. The majority of cases settle out of Court. Parties should seek professional advice at an early stage to ensure they understand the likely value of their potential claims, which will allow them to enter into realistic negotiations with the other side.

Quastels specialise in providing strategic advice to clients so that they can maximise their chances to settle early and avoiding the costs and stress of court.

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Stuart McInnes MBE Joins Quastels As Senior Counsel

Quastels LLP is pleased to announce the arrival of Stuart McInnes MBE, who has joined the firm as Senior Counsel, further strengthening the firm’s dispute resolution and sports law capabilities.

Stuart McInnes MBE is a solicitor, previously with Squire Patton Boggs, with over 40 years’ experience in complex disputes and sports law and is an internationally recognised sports arbitrator. He is widely regarded as one of the leading figures in global sports arbitration and governance.

Internationally Recognised Expertise

Stuart has served as an arbitrator at the Court of Arbitration for Sport (CAS) for around two decades, including appointment to the CAS ad hoc division for the London 2012 Olympic Games, and he has also sat on major-event tribunals. His practice is shaped by substantial cross-border dispute experience, particularly in football and wider sports regulation. In addition, he is Chairman of the Ordinary Arbitration Division of the Qatar Sports Arbitration Tribunal, and sits as an arbitrator at the Saudi Sports Arbitration Center, where he oversees (predominantly football-related) proceedings.

Stuart has acted for and advised governing bodies and stakeholders internationally, including a seven-year consultancy to the Saudi Arabian Football Federation on governance and regulatory matters, dispute resolution, reputation-critical issues, and the drafting and implementation of emergency COVID-19 rules. He has also advised at ministerial level in the Kingdom of Saudi Arabia on sports-law issues, including the development of women’s football and broader participation in sport. Alongside his work in Saudi Arabia, Stuart has advised the Governments of the UAE and The Sultanate of Oman. Stuart undertook high value commercial arbitrations as Counsel and as an arbitrator.

Recognition and Contribution

Stuart was appointed MBE in 2006 in recognition of his charity work in the City of London, and he is active in sports governance and legal education, including as a Visiting Professor on international sports law programmes. 

Joining Quastels

In his role as Senior Counsel at Quastels, Stuart will support the firm’s dispute resolution and sports law offering, providing strategic insight and specialist expertise to clients operating in the UK and internationally. His appointment reflects Quastels’ continued focus on building depth in specialist practice areas.

Stuart’s arrival marks an exciting addition to the firm, enhancing Quastels’ ability to advise on complex, high-value disputes and regulatory matters in the sports sector and beyond.

If you’d like to discuss how Stuart and his team can assist you in sport or dispute resolution matters, whether UK-based or international, please contact him via his email, smcinnes@quastels.com, or call +44 07974 923455.

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