First-tier Tribunal Rejects Landlord's Claim of Lease Breach

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CHI/21UF/LAC/2023/0017 and CHI/21UF/LBC/2024/0010 Property : 33 [ADDRESS], [POSTCODE] Applicant : [redacted]

Representative In Person Respondent: [redacted] : In Person

Type of [NAME] : An allegation of breach of covenant: Section 168(4) Commonhold and Leasehold Reform Act 2002 And [NAME] for liability to pay administration charges Tribunal members

Date of initial hearing:

Mr [NAME] MA LLM FRICS Ms [NAME] Ms [NAME] : 15 January 2025 :13 May 2025

2 Date of final hearing: 13 May 2025

Date and Venue of hearing : FTT(Property Chamber) [ADDRESS] [POSTCODE]

Final DECISION

© CROWN COPYRIGHT Decisions of the Tribunal 1. For the reasons set out below, the Tribunal finds that [NAME]’s allegation that [NAME] has breached of the Lease not proven.

2. The Tribunal determines that no administration charges are payable by [NAME]. Additionally, the Tribunal makes an Order under Landlord and Tenant Act 1985 section 20 C and Commonhold and Leasehold Reform Act 2002 paragraph 5A of Schedule 11 that the costs of the proceedings cannot be levied on [NAME]. Procedural Background 3. Both parties have made Applications. For the purposes of the decision the Landlord/[NAME]/ [ADDRESS] Limited, is referred to as “[NAME]” and the Leaseholder/tenant /Ms [RESPONDENT] and [NAME] is referred to a “[NAME]”. 4. [NAME] made an [NAME] for a determination as to whether certain variable administration charges sought from them by [NAME] were payable by them under the terms of their lease and if so, were reasonable in amount. The administration charges claimed arose, [NAME] says, following an alleged breach of a covenant in [NAME]’s lease not to carry out any alterations to their property without first obtaining the consent of [NAME]. The case reference is CHI/21UF/LAC/2023/0017.

5. By a separate [NAME] [NAME] sought a determination that [NAME] is in breach of a covenant in their lease not to carry out alterations to their property without first obtaining the consent of

3 [NAME]. The case reference is CHI/21UF/LBC/2024/0010. [NAME] denies carrying out unauthorised alterations and disputes that the administration charges can be recovered from them under the terms of the lease. 6. [NAME] also seeks an order pursuant to section 20C of the Landlord and Tenant Act 1985 that any costs incurred by [NAME] in connection with the proceedings should not be included in any service charge payable.

7. Additionally, it seeks a further an order pursuant to paragraph 5A of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 reducing or extinguishing any administration costs that [NAME] might incur in respect of these proceedings and seek to recover from them under the terms of their lease.

8. Directions were issued on 17 July 2024 listing the [NAME] for a case management and dispute resolution hearing on 13 September 2024.

9. The hearing took place at Havant Justice Centre as directed and was attended by [NAME], Solicitor for the Respondent and [COUNSEL], Director the [COMPANY].

10. By an order dated 13 September 2024, Judge N Jutton made Directions in respect of the [NAME]. The [NAME] was later listed for a final hearing on 15 January 2025.

11. The Tribunal ordered that the two Applications be consolidated and dealt with together. It was agreed that for the purposes of the proceedings going forward, [ADDRESS] Limited would be [NAME] and Ms [RESPONDENT] and [NAME] would be [NAME]. 12. [NAME] made an [NAME] and Request for Case Management or other Interim Orders, dated 19 December 2024 submitted by [NAME] for a postponement because ; “ The [NAME] a leaseholder collective , has no funds with which to appoint a representative and there is no one available to attend on an unpaid basis until May 2025 due to prior work commitments.” 13. [NAME] opposed the postponement request.

14. Procedural Judge Whitney determined on the 9 January 2025 that the Tribunal is obliged to deal with all obligations in accordance with its over- riding objective. That includes reaching a final determination within a reasonable period of time, and in a proportionate manner.

15. Judge Whitney, on the 20 December 2024, in response to an [NAME] and Request for Case Management or Other Interim Orders dated 19 December 2024, was not satisfied that the hearing should be postponed and in the absence of further representations the hearing took place on 15 January 2025.

4 16. [NAME] made an [NAME] and Request for Case Management, or other Interim Orders dated 22 December 2024 submitted by [NAME] requesting “Determination on papers alone now, that the breach of lease issue has been addressed by [NAME] or postponement to May 2025.” 17. Procedural Judge Whitney determined that if [NAME] did not attend, then the Tribunal should have regard to their documents filed.

18. By email dated the 12 January 2025, [NAME], represented by [APPELLANT] noted that they were in an overseas country which did not have arrangements in place which permitted evidence to be given remotely. [NAME] asked, that “legal fees” and “administrative charges” should be considered by the Tribunal.

19. As stated, the hearing was listed for 15 January 2025, and it took place at Havant Justice Centre.

20. A hearing took place on the 15 January 2025 attended by [NAME], Ms [RESPONDENT] and [NAME] [NAME] only. [NAME] did not attend. 21. [NAME] in their case management [NAME] dated 22 December 2024 stated, “Determination on papers alone now, that the breach of lease issue has been addressed by the Respondent or postponement to May 2025.” However. at the hearing [NAME] did not accept that a breach had occurred. Without both parties agreeing the position on the alleged breach of covenant the matter remained to be determined by the Tribunal.

22. With [NAME] being absent, additional submissions were invited by [NAME] and [NAME] both provided additional submissions.

23. The Tribunal invited [NAME] to make submissions on the preliminary decision by 29 April 2025. [NAME] may make a brief comment on any submissions [NAME] makes these to be received by the tribunal by 13 May 2025.

24. Submissions from both parties were received and the tribunal considered these before reaching its final decision. The deliberations of which are recorded below under “Supplementary submissions” and “Decision following initial hearing and supplementary submissions”

The Law

5 Section 168 of the 2002 Act provides that: (1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied. (2) This subsection is satisfied if— (a) it has been finally determined on an [NAME] under subsection (4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred. (3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made. (4) A landlord under a long lease of a dwelling may make an [NAME] to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred. (5) But a landlord may not make an [NAME] under subsection (4) in respect of a matter which— (a) has been, or is to be, referred to arbitration pursuant to a post- dispute arbitration agreement to which the tenant is a party, (b) has been the subject of determination by a court, or (c) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (6) For the purposes of subsection (4), “appropriate tribunal” means — (a) in relation to a dwelling in England, the First-tier Tribunal...

The Lease The following provisions of the lease are relevant to this [NAME]. By prescribed clause 1 of the lease, “the property” or Flat 33 is described as follows:

6 ALL THAT the flat numbered 33 on the ground floor of the Building and more particularly described in the First Schedule hereto Together with the easements rights and privileges mentioned in the Second Schedule hereto EXCEPT AND RESERVING as mentioned in the Third Schedule.

THE FIRST SCHEDULE

ALL THAT the Flat numbered 33 on the ground floor of [ADDRESS] in the County of East Sussex as the same is drawn on Plan No 1. annexed hereto and hatched black on Plan No 2 annexed hereto including;

(a) the internal plastered coverings and plaster work of the walls bounding the demised premises and the doors and door frames and the window frames in such walls and the glass fitted in the windows; and (b) the plastered coverings and plaster work of the walls and partitions lying within the demised premises and the doors and door frames fitted in such walls and partitions; and (c) The plastered coverings and plaster work of the ceilings and surfaces of the floors including the whole of the floorboards skirting boards and supporting joists (if any) and (d) All conduits which are laid in any part of the Building and serve exclusively the demised premises; and (e) All fixtures and fittings in or about the demised premises and not hereafter expressly excluded from this demise but not including: - (i) Any part or parts of the Building (other than conduits and joists expressly included in this demise) lying above the said surfaces of the ceilings or below the said floor surfaces; or (ii) Any of the main timbers and other joists of the Building or any of the walls or partitions therein (whether internal or external) except such of the plastered surfaces thereof and the doors and door frames fitted therein as are expressly included in this demise; or (iii) Any conduits in the Building which do not serve the demised premises exclusively

3. Clause (9) (a) and (b) refers to alterations.

7 (9) (a) Not without the prior written consent of the [NAME] (which consent shall not be unreasonably withheld) to make any non-structural alterations to the interior of the Flat. (b) Not to make any alteration or addition whatsoever in or to the Flat , either externally or internally save as permitted by the immediately preceding sub- clause (a) or to make any alteration or aperture in the plan external construction or elevation thereof AND without prejudice to the generality of the foregoing not to alter cut or injure any of the principal timbers iron or steel work or walls of the Flat or place on or affix to the outside of the flat any pipe wire or other apparatus or cover up or disfigure any architectural feature of such Flat or do or suffer in or upon the Flat any wilful or voluntary waste or spoil. The Hearing of 15 January 2025 25. At the hearing [NAME] did not attend. [NAME], Ms [RESPONDENT] and [NAME] attended in person. The Tribunal was provided with the following documentation for the hearing: (i) 257-page hearing bundle, (ii) an [NAME] and request for case management or other interim orders made by [NAME] of the [NAME] dated 19 December 2024, with (iii) a subsequent Tribunal order by Judge Whitney dated 20 December 2024 (iv) an [NAME] and request for case management or other interim orders made by [NAME] of the [NAME] dated 22 December 2024 with (v) subsequent Tribunal order by Judge Whitney dated 9 January 2025 and (vi) email of 12 January from [NAME] of the [NAME].

26. At the start of the hearing the Tribunal noted that [NAME] made an [NAME] and Request for Case Management, or other Interim Orders dated 22 December 2024 submitted by [NAME] requesting “Determination on papers alone now, that the breach of lease issue has been addressed by the Respondent or postponement to May 2025. Tribunal’s bold highlighting. 27. [NAME] said that works had been carried out to infill an area of dividing wall between the living room and the kitchen and that a door had been fitted subject to the landlord’s requirements. However, [NAME] did not accept that a breach of the lease had previously occurred.

28. The Tribunal took an adjournment to consider the respective positions and determine the procedural way forward.

29. In the absence of either specific agreement by both parties on the alleged breach or specific withdrawal by both parties of the action for the alleged breach, then the [NAME] alleging a breach is still outstanding and requires to be determined by the Tribunal.

30. The Tribunal determined that the outstanding question of the alleged breach should be addressed first, using the submissions in the bundle and

8 oral evidence by the [NAME] who were present. The lease plan showed a solid division between the living room and the kitchen and a door opening with a door fitted. The Applicant’s [NAME] and later jointly appointed building surveyor had made a visual inspection of the interior of the property and recorded the part open plan nature of the area between the living room and the kitchen, and that no door was fitted. Given the [NAME] were not present the Tribunal determined that it would issue a preliminary decision from which the [NAME] could make written representations later if they wished. Such written representations as made would be reviewed on paper before the final decision was issued. Appeal rights would run from the issue of the final decision. The Alleged Breach of undertaking non-structural alterations without prior written consent – Clause 9 (a) and (b) [NAME] (Leaseholders) submission 31. [NAME] gave an overview of the issues. [NAME] had sought to have their lease extended, the premium for which had been agreed with [NAME]. A [NAME] [NAME] had been made to the Tribunal for determination of costs payable to the Respondent landlord for the lease extension. This [NAME] was determined by Judge Lumby on 18 April 2024.

32. [NAME] noted that a [NAME] acting for [NAME] had inspected the property at the time of the [NAME] for a lease extension and recorded the open plan nature of the access to the kitchen. The landlord’s [NAME] noted the access to the kitchen was different in form from that described on the lease plan.

33. The lease plan [123] of the bundle showed an enclosed kitchen accessible via a doorway and a door. The physical construction found by the landlord’s [NAME] was that no door had been fitted and the dividing area between the kitchen and the living room comprised a half height solid wall.

34. [NAME] considered that this difference between the physical reality within the flat and that as represented in the lease plan demonstrated that alterations had taken place without authorisation and therefore [NAME] was in breach of the lease namely Clause 9(a) and (b).

35. [NAME] did not concede that a breach of the lease had occurred, however. Nonetheless they agreed to extend the half height brick wall up to the ceiling and fit a door.

36. The Tribunal was referred to a recent photograph of the area between the living room and the kitchen which was contained within the bundle. This confirmed the presence of a half-height dividing wall and no door fitted to the doorway. doorway of the flat within the bundle.

9 37. [NAME] decided to appoint a [NAME] to carry out opening up work to the subject area in order to ascertain the true position concerning alleged alterations and to make the finalised wall match the layout of the flat contained in the lease plan. This was done without tacit acceptance of [NAME], that unauthorised alterations had been made or that there had been a breach of lease.

38. During the works [NAME] observed that following: the removal of timber finishing and plaster, the brickwork contained only undamaged bricks. [NAME] submitted this indicated that that the subject wall was as originally built in that if there had been a later alteration it would be expected that severed half bricks would be observed.

39. [NAME] also noted that their contractor believed that the age of the plaster indicated it was contemporary with the original construction of the property, further that the lintel above the opening was of an age that indicated the opening was as built and finally the lack of severed bricks was indicative again of there not being a subsequent opening of the area. However, [NAME]’s contractor did not supply a witness statement nor was in attendance in the Tribunal.

40. [NAME] submitted that a flat is currently for sale in the block, and that they had observed from the marketing details that the kitchen in the property for sale had a similar open plan access.

41. Finally, [NAME] noted that previously the flat had been subject to water penetration from above. During the rectification of this [NAME]’s flat was visited a number of times by the Landlord. At no time did this result in the Landlord indicating concern over potential alterations.

42. Bundle [201] [NAME]’s exhibit EIC4 includessales particulars dated 2013 for the subject property showing no fire door fitted to the kitchen. Additionally, within the bundle there is a plan of proposed flats in Peacehaven dated 1972. The plan shows the kitchens in the units having no doors. How this relates to the subject premises is not known.

43. [NAME] included a letter from the leaseholder’s [NAME] to the landlord's [NAME] noting;

“ I have taken a look at my photographs of the wall and the kitchen units etc and I do believe it to be original. The kitchen units adjoin the kitchen return, and this matches the wood ledge and carpentry detail around the opening. I am confident that the kitchen is original, and the overall style is in keeping with the age of the lease. The majority of the wall is there and may have led the draughts person drawing in the wall on the lease plan, or adopting the architects plan, (as we know happens all too often.) Do you or your client have any proof that this feature is not original?”

10 44. [NAME] claimed that neither they nor their predecessor had undertaken any alterations in this area. It is noted that [NAME] had undertaken the works to infill and fit a door in order to settle the matter.

[NAME]’s submissions

45. [NAME], was not in attendance being abroad at the date of the hearing and being unable to give evidence from the country which they were in.

46. [NAME]’s [NAME] form contends that “alterations have been made to the interior structure of the flat without prior written consent, of the lessor as required by section 9 (a) and (b) of the lease”.

47. During an inspection for the purposes of a new lease, pursuant to the provisions of the Leasehold Reform Housing and Urban Development Act 1993, the Lessor’s [NAME]/Surveyor noted the existence of only a half height wall in situ between the living room and the kitchen of the property (such door and wall being shown on the lease plan).

48. The [NAME] notes that “after protracted correspondence [COMPANY], (Chartered Building Surveyors) were appointed on a mutually agreed basis, to report on whether alterations had been made and what impact such alterations had particularly in relation to the structural integrity of the building and compliance with relevant building control and fire regulations. KMS confirmed that alterations had been made, and retrospective building control is required to answer structural and fire safety issues. They also took the view that such retrospective Building Control Approval is required for [NAME] to accept there is no additional fire risk to the building.

49. The [NAME] claimed there was no alteration but then agreed to alter the property to concur with [NAME]’s demand to settle the matter.

50. [NAME] submitted a position statement. Within the position statement at paragraph 14, it was noted “[NAME] inspected the property on 20 April 2024 and reported the property had been altered and concluded that the certain way to answer the structural and fire safety issue would be through a retrospective [NAME] for building control approval.”

51. The bundle at [73] has a copy of the report of [NAME] of KMS ([COMPANY] carried out on the 20 April 2023. At 1.3.2 the report states “The original configuration of the flats includes a fire resisting door between the kitchen and the sitting room”. Under 2.2.1 “Methodology” the report states that “no intrusive or destructive investigations were undertaken. The inspection was “visual”. The analysis within the report was limited to comparing Flat 27 which was said to be in an original condition with that of Flat 33. Flat 27 having a closing fire door to the kitchen.

11

Supplementary submissions [NAME]

52. The submission contained a letter from [NAME] dated 8 April 2025 the [NAME] [NAME] states (i) there is a lease plan from 1983 the original lease, which shows the kitchen physically divided from the remainder of the flat (ii) that another flat in the block, that shows flat 27 where the flat has an enclosed kitchen. From these the [NAME] concludes “in flat 33, the door and most of the wall between the kitchen and the living room has been removed.”

53. The Tribunal notes that if the letter is intended to be an expert opinion it is not accompanied by a statement of duty to the Tribunal. Additionally, the weight and inference of the two pieces of factual information can be judged by the Tribunal. There was no professional opinion on whether there was or was not a wall and door original in place based on examination of the physical fabric. Nor was there any commentary on the evidence provided by [NAME] on what was physically found when the section of kitchen was opened up.

54. [NAME] made a number of additional contentions.

55. First “inconsistent evidence of evaluation”, expresses concern that lease plan, layout of another flat in the block and independent RICS- qualified surveyor have been not accepted. The Tribunal is concerned with the evidence of the physical history of the kitchen and remainder of flat area. The Tribunal gives some weight to the lease plan provided, but the plan in itself is not conclusive, as on occasion lease plans and the physical reality do not match up. Again, the Tribunal gives some weight to the layout provided relating to another flat, but this in itself is not conclusive. The letter from KMS does not take the Tribunal any further because it draws a conclusion from those two pieces of evidence with adding further comment or explanation.

56. Second “Contradiction of Expert Opinion”. There are two opinions presented to the Tribunal, one KMS and the second an eye witness account from [NAME] upon opening up of the subject dividing wall. The Tribunal does give weight to the KMS evidence, however without commentary on the physical fabric of the actual demise the evidence constitutes a view on the facts identified in the report. The Tribunal has not given weight to the purported comments of the Respondent's tenants [NAME], because there was no witness statement to substantiate it nor did the [NAME] appear as a witness before the Tribunal. In the case of [NAME], the co-Respondent, whilst the Tribunal notes he does not purport to have any qualifications in construction, he did give evidence to the Tribunal that the opened-up face of the bricks comprised undamaged ends of bricks. The Tribunal specifically questioning him on this point. The Tribunal concluded from this that if there had been a wall that ran beyond

12 that of the existing then removal of it would have resulted in some severed brick ends being present. [NAME] [NAME] being questioned on this specific point by the Tribunal said there were no severed brick ends present.

57. Third “preference for unqualified opinion” the Tribunal is aware of the lack of construction qualifications of the co-Respondent [RESPONDENT] [NAME]. The Tribunal gives weight to the eyewitness evidence of the co- Respondent and using its own expertise considered how this impacted on the question of whether or not there was a breach of covenant.

58. Fourth “Neglect of the Landlord’s Opinion”, The Tribunal has afforded weight to the Landlord’s opinion substantiated by the Landlords experience in the block. This as with all evidence is weighed and balanced by the Tribunal in reaching its determination.

59. Fifth “Implications for insurance” the jurisdiction of the Tribunal is limited to the question of whether a breach of covenant has occurred. The implication for insurance of the physical layout of individual flats within the block is outside the jurisdiction of the Tribunal.

60. [NAME] also gave their view on a number of points raised by [NAME].

61. Consideration of plans from 1972. [NAME] expressed concern in the weight that may have been given to plans that were in their view irrelevant. Paragraph 43 in the preliminary decision addressed this point and specifically noted “The plan shows the kitchens in the units having no doors. How this relates to the subject premises is not known.” The Tribunal has not given this piece of evidence any weight because it relates to approximately 10 years before the block was developed.

62. [NAME] notes that the “[NAME] claims irrelevant”. The preliminary decision at paragraph 40 in the preliminary decision “The Respondent noted that their contractor believed that the age of the plaster indicated it was contemporary with the original construction of the property, further that the lintel above the opening was of an age that again indicated the opening was as built and finally the lack of severed bricks was indicative again of there not being a subsequent opening of the area. However, the Respondent’s contractor did not apply a witness statement nor was in attendance in the Tribunal.” The Tribunal gave no weight to the Applicant contractors view as this was not substantiated.

63. [NAME] acknowledges that alterations have been made to other flats, and that [NAME] does not oppose alterations that have received proper building control. The Tribunal is only concerned with whether a breach has occurred. [NAME] has addressed other requests for alterations is not of relevance in the considerations.

64. [NAME], notes their “flexibility” in seeking to minimise unnecessary costs, by suggesting “retrospective consent”. However, the

[NAME] it is noted delayed addressing the breach and instead pursued a resolution via reinstatement. The attempts to reach a conclusion are not material to the Tribunal deliberations, the Tribunal is only concerned with evidence that concerns whether a breach of covenant has or has not occurred.

[NAME]’s Supplementary Submission

65. The Tribunal is in receipt of a witness statement of [RESPONDENT] dated 4 April 2025. Within which at paragraph 3 of the statement [NAME] notes they have entered into an agreement to instal a 30 mins fire resistant door and infill. The Tribunal notes this but this does not provide evidence to the issue of the alleged breach of covenant.

66. [NAME] cites in their witness statement of 4 April 2025 notes that three surveyors have been involved with the flat either for lease extension or alleged breach of covenant basis. [NAME] reporting their view that a stud wall had been removed, and in the case of [NAME] [NAME] expressing the view the kitchen was the original. The third surveyor [NAME] instructed by the [NAME] inspected the subject property with the instructing Landlords but in the absence of [NAME].

67. [NAME] contends in their witness statement that photograph number 8 of flat 27 the “borrowed light” or glass above the door is higher than the equivalent photograph of 33, photograph number 7. The implication it is said is that there were different designs of kitchen in place in the block. The Tribunal notes the distinction being made, the reason for the difference is unknown, but [NAME] infers it implies different designs were in place at the block development stage.

68. The witness statement includes a narrative on the impact emotionally and financially on [NAME]. These matters have no influence on the issue of determination of a breach of covenant or not.

69. The witness statement includes an architectural plan of the internal layout of the block annotated as “proposed flats development” and dated October 1972. The Tribunal has heard the actual date of construction and the date the lease commenced 2nd November 1982.

Decision following initial hearing and supplementary submissions.

70. The Tribunal reached its decision after considering [NAME]’s oral evidence and the written evidence of the parties, including documents referred to in that evidence, and taking into account its assessment of the evidence. The Tribunal also took into account the parties’ submissions, supplementary submissions and arguments when reaching its decision.

14 71. The Tribunal has applied the relevant law to the issues that require

determination, and our decisions are below.

72. Before the Tribunal concerns itself with the question of the breach of the lease, it needs to ascertain if any alterations actually took place.

73. The physical layout of the flat as shown, in the lease plan, [123] of the bundle, and the physical layout, are not consistent. The lease plan was indicative of what was meant to, or assumed to have been built at the time of the grant of the lease but is not on its own conclusive. [NAME] being in receipt of the view of a [NAME] that the style and nature of the kitchen indicated it’s layout was as built. The Tribunal places weight on this as it is not uncommon for a lease plan not to match the layout that was actually built. The Tribunal placing great weight on the view that the style of the kitchen was that likely to be that as original constructed indicated no alteration from the as constructed state.

74. The Tribunal heard from [NAME] that they had made investigations with Brighton & Hove City Council Planning Department which provided plans contained in the original [NAME] for planning permission to construct the development. These showed a part open plan kitchen area consistent with what exists currently. The [NAME] did not show the Tribunal any copies of the [NAME] to substantiate this statement. As such the Tribunal cannot place any weight on the information provided.

75. The Tribunal has heard accounts of direct observations from [NAME], of the material and condition of masonry revealed when the works were being undertaken in December 2024 to install a door. Again, we have not seen photographic or witness evidence of this by way of a report from [NAME]’s contractor. However, no other surveyor, [NAME] or contractor had yet opened up the structure of the property. The Tribunal considers this to be potentially good evidence as it is direct observational evidence of the nature and formation of the subject wall.

76. The Tribunal heard evidence from [NAME] that their contractor believed the nature of the lintel, type of plaster and state of the brick work to be indicative as being in the same condition as built. Without a witness statement from the contractor nor the opportunity to test their evidence, the Tribunal cannot place much weight on this.

77. The Tribunal has evidence from KMS ([COMPANY] that “Flat 33 has been altered by a [NAME]”. In the original course of events great weight would be placed on this report, given the [NAME] is a building surveyor. However, the statement by KMS above, at paragraph 48 is problematic for the Tribunal because in the report KMS appears to assume a point of reference that the original flat contained a fire door, when in fact this was the very thing, the inspection was aimed at identifying. Any comparison with a stated position of there being a fire door originally present and the physical state at inspection must conclude there was an

15 alteration. However, we do not know that Flat 33 had such a fire door when originally constructed.

78. The report by KMS is also caveated by the fact that no intrusive work was undertaken to investigate. This means the evidence cannot be as incisive as if the subject area had been opened up.

79. There are copies of lease plans from 1972 for a development in Peacehaven which show the units to have no doors in the kitchen. This is problematic for the Tribunal as it does not specifically connect the plans with this development either by notation or oral evidence on where these plans have originated from layout to be original.

80.There is also the statement made by [NAME]’s [NAME] where they indicated they believed the layout was original. The analysis provided was detailed and the Tribunal places reasonable weight on this.

81. In the circumstances, the Tribunal places greatest weight on the first-hand observations of [NAME]. In particular the observation of opening up of the half height brick wall, between the living room and the kitchen, showed unbroken brickwork. The Tribunal considers this a strong indication that the wall as exposed was as built with no further alterations. Additionally, again with first hand observations by [NAME] that the surface of the bricks of the half height wall was clean of mortar. This indicates strongly to the Tribunal that these bricks were not the remainder of a taller wall but had been laid and finished without further mortar being added.

82. The Tribunal determines on balance of the evidence that an alleged breach of the lease caused by removal of a fire door and part of a wall is not proven. There cannot be a breach when it is not proven there was an alteration in the first place.

Administration Costs

83. As a consequence of finding that there is no breach of covenant proven, the costs that stem from this are not claimable under the lease.

Other matters

84. [NAME] in their [NAME] challenging the Administration Charge, also applied for an Order under section 20C Landlord and Tenant Act 1925 and Para 5 A Schedule 11 of the Commonhold Leasehold Reform Act 2002, that service charges and administrative charges that [NAME] incurred on the pursuance of the alleged breach of covenant are not chargeable. The Tribunal determines that given that the breach is not proven, the Tribunal makes an Order under Section 20C Landlord and Tenant Act 1926 and Para 5A Schedule 11 of the Commonhold Leasehold Reform Act 2002 that costs incurred by the Landlord in the proceedings of

16 this Tribunal cannot be passed to the Tenant by way of service charge or administration charge in respect of litigation costs.

85. Finally given the determination that the alleged breach was not proven, the Tribunal makes an Order for the reimbursement of [NAME]’s [NAME] fee and the hearing fees.

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).