Our block sits within a larger development. Some residents say they should not pay for gardens, a gym and a concierge they cannot access, and one ground-floor leaseholder objects to paying for the lift. Do leaseholders have to pay for services they cannot use?
Sometimes. A leaseholder's liability normally depends on the precise wording of their lease, rather than simply on whether they personally use or benefit from a service. A lease can require a leaseholder to contribute to services they do not use, but a landlord, RMC, RTM company or managing agent cannot normally charge for an item that falls outside the lease's service charge provisions.
Service charge liability is primarily contractual. Before asking whether a charge is fair, the first question is always whether the lease creates a liability to pay it.
A well-drafted residential lease will usually identify:
Statutory protections sit on top of that contract rather than replacing it. Section 19 of the Landlord and Tenant Act 1985 limits recovery to costs reasonably incurred and works of a reasonable standard, and section 27A allows the First-tier Tribunal to decide whether a service charge is payable. Neither provision creates a liability where the lease contains no basis for charging the cost in the first place. A charge can be entirely reasonable in amount and still be irrecoverable because the lease does not permit it.
Leaseholders frequently ask why they should pay for something they never use. In many blocks the honest answer is that the lease says so.
Where a lease clearly requires a contribution to a category of expenditure, personal use is generally beside the point. Common examples include:
None of these is a universal rule. Some leases use separate schedules so that only certain flats contribute to certain services. Others apply a single percentage to all expenditure on the building. The answer depends on the drafting and on the facts of the development, which is why two neighbouring blocks can produce different outcomes on the same issue.
There is a real difference between choosing not to use a facility and having no right or practical ability to use it.
Four situations are worth separating:
Where a facility sits outside the defined building or estate, and the lease does not otherwise provide for contributions towards it, there may be no contractual route to recover the cost. Where the lease uses sufficiently clear wording, however, a lack of access will not automatically remove the liability.
The point was examined in Notting Hill Home Ownership Ltd v Samoail and others [2026] UKUT 235 (LC), a decision of the Upper Tribunal (Lands Chamber) given on 30 June 2026.
The case concerned shared ownership subleaseholders occupying a separate block within a wider development. The disputed charges related to facilities and areas in the wider development, including communal gardens, a concierge service and a gym. The residents did not have contractual rights to access or use certain of those wider-development facilities.
The headlessor was itself liable to contribute to wider-development charges under its own headlease. The occupational subleases, however, only allowed recovery of expenditure connected with the building and the relevant estate as those terms were defined in the subleases. The Upper Tribunal upheld the conclusion that most of the disputed wider-development charges were not payable under those subleases. The landlord could not simply pass its headlease liabilities down to the subleaseholders where the subleases did not contain the contractual machinery to recover them. An attempt to vary the subleases under section 35 of the Landlord and Tenant Act 1987 was unsuccessful on the facts.
The decision does not establish a general rule that leaseholders never pay for services they cannot use. It reinforces the opposite discipline: the exact wording of the particular lease determines what is recoverable, and a mismatch between superior and occupational leases is a drafting and management problem rather than a matter of fairness.
Mixed-tenure and mixed-use developments often have layered leases: a freeholder, a headlessee such as a housing provider or investor, and individual occupational leaseholders below.
A mismatch arises where the freeholder or headlessee must pay estate or wider-development costs under a superior lease, but the occupational leases do not permit all of those costs to be recovered from individual leaseholders. The existence of a cost at headlease level does not automatically make that cost recoverable under every sublease. Where the machinery is missing, the intermediate party may have to absorb the shortfall unless the leases are varied or a separate agreement is reached.
For RMC and RTM directors of blocks that form part of a larger development, this is worth checking early. It is far easier to identify a recovery gap when setting a budget than after demands have been issued and challenged.
Practical management steps:
A managing agent should administer the lease as written. It should not redesign the allocation because a different split appears fairer, or because a group of leaseholders has asked for a change. Where the lease gives a discretion, that discretion must be exercised within the limits the lease sets.
A leaseholder who questions a charge can take a structured approach:
The First-tier Tribunal (Property Chamber) can determine whether a service charge is payable, and if so by whom, to whom, how much and when, under section 27A of the Landlord and Tenant Act 1985. That is a general description of the jurisdiction and not advice on any particular dispute.
The decisive question is generally not "Did this leaseholder use the service?" but "Does this lease make this leaseholder contractually liable for this category of expenditure?"
Answering that question properly takes a careful reading of the lease, an accurate understanding of the development's structure, and service charge accounts that keep different cost centres apart. Where the lease is clear, use or non-use rarely changes the outcome. Where the lease is silent or the expenditure falls outside the defined premises, the charge may not be recoverable however sensible it looks.
None of the situations below has a fixed answer. Each one turns on the wording of the particular lease and the facts of the development.
| Situation | Is payment automatically required? | What needs to be checked? |
|---|---|---|
| Ground-floor flat and the lift | No. It depends on the lease. | Whether the lift forms part of the common parts the leaseholder contributes to, whether a separate schedule excludes ground-floor flats, and how the apportionment is expressed. |
| Separate block and estate gardens | No. It depends on the lease. | How the lease defines the building and the estate, whether estate grounds are within the definition, and whether an estate schedule applies to that block. |
| Gym or concierge the leaseholder cannot access | No. It depends on the lease. | Whether the lease gives any right to use the facility, whether the facility sits inside the defined building or estate, and whether the service charge provisions cover that expenditure at all. |
| Parking area where the flat has no parking right | No. It depends on the lease. | Whether the parking area is part of the common parts, whether maintenance of it is a recoverable service, and whether parking costs sit in a separate cost centre. |
| Commercial unit and residential services | No. It depends on the lease. | Whether the leases separate residential and commercial expenditure, how mixed-use costs are apportioned, and whether the commercial leases contribute on a different basis. |
| Communal heating that does not serve a particular unit | No. It depends on the lease. | Whether the unit is connected to the system, how heating costs are defined and apportioned, and whether any metering or separate schedule applies. |
| Wider estate costs passed through a headlease | No. It depends on the lease. | Whether the occupational lease contains machinery allowing recovery of superior lease costs, and whether the expenditure relates to the building or estate as defined in that lease. |
Often yes, but not always. Many leases require every flat in a block to contribute to the common parts, including the lift, regardless of the floor the flat sits on. Some leases use separate schedules or reduced percentages for ground-floor flats. The lease wording and the apportionment provisions decide the point, not whether the leaseholder personally uses the lift.
It depends on the lease. If the garden falls within the building or estate as defined in the lease, and the service charge provisions cover its upkeep, a contribution may be payable even where access is limited. Where the garden lies outside the defined property and the lease gives no right of use and no clear recovery mechanism, the charge may not be payable. The 2026 Upper Tribunal decision in Notting Hill Home Ownership Ltd v Samoail turned on precisely that kind of analysis.
Choosing not to use a facility does not normally remove a contractual liability to contribute. If the lease requires a contribution to the cost of a concierge or gym within the defined building or estate, the charge can be payable even if the leaseholder never uses it. The position may differ where the leaseholder has no right of access and the facility falls outside the property the lease covers.
Withholding payment is risky. Non-payment can create arrears, interest, administration charges and enforcement action, including proceedings, even where part of the charge is genuinely arguable. A leaseholder who disputes a charge should normally request a breakdown, identify the relevant lease provision, put the dispute in writing and take specialist advice on whether to pay under protest or apply to the First-tier Tribunal, rather than simply refusing to pay.
No. A cost that the headlessee must pay under a superior lease is not automatically recoverable from individual leaseholders. The occupational lease must contain the contractual machinery to recover that category of expenditure. Where it does not, the intermediate landlord may have to absorb the shortfall unless the leases are varied or another agreement is reached.
No. The apportionment is set by the leases. A managing agent should administer the leases as written and should not redesign the allocation because a different split appears fairer. Where the lease gives a landlord or surveyor a discretion, that discretion must be exercised within the limits the lease sets.
Not normally by informal agreement or by a management decision, and not merely because the existing arrangement looks unfair. Depending on the lease and the circumstances, changing the apportionment may require the agreement of the parties, a deed of variation, or an application to the First-tier Tribunal under Part IV of the Landlord and Tenant Act 1987. In Notting Hill Home Ownership Ltd v Samoail the attempt to vary the subleases under section 35 of that Act did not succeed on the facts.
If the parties cannot resolve the point, the First-tier Tribunal (Property Chamber) can determine whether a service charge is payable, and if so by whom, to whom, how much and when, under section 27A of the Landlord and Tenant Act 1985. The Tribunal can also consider whether costs were reasonably incurred under section 19.
How this question affects you depends on your role in the block.
Assuming that not using a service removes the liability
Where the lease requires a contribution to a category of expenditure, personal use is usually irrelevant.
Assuming that a charge is valid because it is reasonable
Reasonableness under section 19 limits recovery. It does not create a contractual liability the lease does not contain.
Passing headlease costs straight down to subleaseholders
A cost payable under a superior lease is only recoverable if the occupational lease contains machinery allowing it.
Adjusting apportionments informally because they look unfair
Percentages are set by the leases. Changing them may require agreement or a formal variation.
Mixing estate, building and commercial expenditure in one pot
Blended accounts make it difficult to show that each leaseholder has been charged only what their lease permits.
Most questions on this topic are management questions rather than legal ones, and the two are worth separating. A managing agent can tell you how something works day to day and what it will cost. A solicitor tells you what your rights are and how a Tribunal is likely to view them.
East Valley Properties provides management expertise, not legal advice. Where a matter turns on the wording of your lease or on formal proceedings, we will say so and work alongside your solicitor.
The official material behind this guide. We summarise it in plain English rather than reproducing it.
Upper Tribunal (Lands Chamber). Wider-development charges and an unsuccessful variation application under section 35.
Tribunal jurisdiction to determine whether a service charge is payable.
Costs must be reasonably incurred and works of a reasonable standard.
Application to vary a long lease on specified grounds.
Law firm commentary on the same decision, included as clearly labelled secondary reading.
Clear budgets, designated client accounts and year-end accounts leaseholders can actually follow. We can review your current arrangement at no cost.
Answered by Romain Maillard - Director, East Valley Properties
Romain manages residential blocks and estates for RTM companies, residents' management companies, share of freehold developments and freeholders across East London and Essex.
Published
This answer has been anonymised. Personal details, addresses and company names have been removed. Guidance is general and does not replace advice from a solicitor or surveyor on your specific block. East Valley Properties is a managing agent, not a firm of solicitors or legal advisers.
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