We always keep an eye on case decisions from the Upper Tribunal. It’s one of the tools that we use to ensure that we are always providing the very best and up to date advice.
We also thought that it would be worthwhile to share bitesize updates about the outcomes of the cases that we find relevant and interesting.
So, welcome to the first of Peter Cornell’s regular FTT/Upper Tribunal updates;
Breach of Covenant – Make the effort and ask the question.
A case from the Upper Tribunal has cleared up any issue with regard to the need to request consent from a landlord for alterations to be undertaken.
The case is Mr Farhad Raja and Jane Doe and Mr David Aviram [2016] UKUT 0102 (LC).
The leaseholder (Mr Aviram) is subject to a lease with the following clause:
“The tenant will not at any time during the said term cut maim alter or injure any of the principle timbers, roofs or walls of the Flat… or make any structural alterations or additions whatsoever in or to the Demised Premises externally or internally…. Or make any alteration in the … architectural appearance or exterior decorations or the demised premise without the consent in writing of the Lessor first obtained”
This is a very common clause in leases and requires leaseholders to obtain the landlords consent to make alterations.
In this case there was a wealth of history between the parties and various claims were made by the landlord against the leaseholder.
The facts raised in this appeal, are that the leaseholder had a new boiler installed which caused new holes to be cut into the structure. There was no permission to alter sought from the landlord on the basis that the leaseholder:
1. Was informed by the contractors that the work was like for like therefore he assumed that any alternations were very limited and he had no choice.
2. He could not locate the landlord – attempts had been made as a letter was sent to the named landlord, but it was requesting information about the address for service as he was hoping to sell his property.
The First-Tier Tribunal (FTT) found that there had been no breach as they accepted that the leaseholder had no knowledge of the alteration and also they considered the leaseholder’s efforts to locate the landlord reasonable.
Upon appeal the Upper Tribunal overturned the FTT decision and found that there had been a breach.
Their reasoning for doing so was that there had clearly been at least one new hole created by the leaseholder’s agent (which was accepted at the FTT proceedings) and the works were done without the consent of the landlord. The fact that the landlord would have consented to it is not relevant.
This case firstly highlights the idea that just because a leaseholder may not be aware that an alteration is made is irrelevant, it is clear in this instance that the leaseholder instructed his agent to install the boiler that resulted in holes being drilled, thereby altering the structure in breach of the clause.
Secondly it highlights the importance of leaseholders seeking consent from the landlord, the fact that they cannot locate the landlord does no give them the right to go on make the alterations without making reasonable attempts to request consent –in this case the leaseholder failed at any point to request consent, although it was accepted that some efforts were made to locate the landlord.
If you have any queries regarding any potential breach of covenant then please don’t hesitate to contact LMP Law for help.
