The names Morshead Mansions / Di Marco may be familiar to leaseholders whose freehold is owned by a company of which they are members. A well known dispute in 2008 clarified that sums equivalent to service charges could be demanded of leaseholders by the company pursuant to its articles of association, as opposed to under the lease.

Di Marco v Morshead Mansions Ltd [2014] EWCA Civ 96 was another dispute between the same parties. Di Marco brought a counterclaim against the freeholder's demand for monies under the articles of association. The issue before the Court of Appeal was whether a leaseholder can ask a civil court to grant an injunction to compel the landlord to comply with the obligations in sections 21 and 22 of the Landlord and Tenant Act 1985?

In this case Di Marco was asking Morshead Mansions to supply him with a written statement of costs which formed part of the service charge under s.21, or to provide him with reasonable facilities for inspecting the documents which supported the summary, under s22. The sanction for non compliance with these sections is in the criminal jurisdiction: s.25 states it is a summary offence for a person to fail, without reasonable excuse, to perform a duty imposed on him by these sections.

The Court of Appeal held there is no civil remedy available in respect of ensuring compliance with ss.21 and 22 of the Landlord and Tenant Act 1985 and accordingly Di Marco was not entitled to a mandatory injunction.

It should be noted, however, that many leases may require the landlord to provide a certified summary of expenses incurred during the service charge period. Where this is so, the leaseholder should be able to sue the landlord for contractual breach of this covenant, thereby obtaining an injunction or order for specific performance.