First-tier Tribunal Rules on Lease Breaches

OUTCOME: Allowed in Part

FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME])

Case Reference

:

CHI/45UH/LBC/2018/0033

[NAME]

:

[ADDRESS], [POSTCODE]

Applicant: [redacted]

:

[COUNSEL] (counsel)

Respondents

:

[redacted]

:

Not represented

Type of Application

:

Determination of alleged breach of covenant

Tribunal Members

:

Judge [NAME] and [NAME]

:

26 [ADDRESS], [POSTCODE]

Date of Decision

:

8th April 2019

DECISION

© CROWN COPYRIGHT 2019

1 Introduction

2 The Applicant, [APPELLANT], makes an application to the Tribunal pursuant to section 168(4) of the Commonhold and Leasehold Reform Act 2002 for a determination that the Respondent [RESPONDENT] has breached a covenant or condition contained in the lease of [ADDRESS], [POSTCODE] ([NAME]). In particular the Applicant contends that the Respondent has committed a breach by reason of the use to which [NAME] has been put and by carrying out certain unauthorised alterations.

3 Documents before the Tribunal

4 The documents before the Tribunal comprise a bundle of some 193 pages which include the Applicant’s application, the Respondent’s Lease (including a Deed of Variation), Statements of Case, correspondence and legal authorities. References to page numbers in this Decision are references to page numbers in the bundle of documents.

5 The Statutory Provisions

6 Section 168 of the Commonhold and Leasehold Reform Act 2002 provides:

“(1) A landlord under a long lease of a dwelling may not serve a Notice under section 146(1) of the Law of [NAME] 1925 (c20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless sub-section (2) is satisfied.

(2) This sub-section is satisfied if –

(a) it has been finally determined on an application 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. …

(4) A landlord under a long lease of a dwelling may make an application to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred”.

7 The Lease

8 The Respondent’s Lease is dated 26 July 2017. It is in the form of a Deed of Surrender and Grant of New Lease made between the Applicant and Respondent (12-17) (the Lease). It provides for the surrender of a Lease dated 30 September 1988 made between [COMPANY]

(1) and [NAME] [NAME] [NAME] and [NAME] (2) (14-17) (the Old Lease) and the grant of a new lease. Clause 5 of the (new) Lease incorporated into the Lease the covenants provisions regulations conditions and other matters contained in the Old Lease as if they were set out in full in the Lease as varied by it. The variations related to the term and the ground rent payable. Accordingly references to the provisions of the Lease in this Decision are by reference to those provisions as set out in the Old Lease

9 The Lease contains the following provisions (as set out in the Old Lease):

10 Paragraph 9 of the recitals states:

“[NAME] has previously sold or granted or proposes to sell or grant long leases of the flats in [NAME] and intends to impose restrictions similar to those set forth in the First Schedule hereto to the intent that the owner or [NAME] for the time being of any part of [NAME] or any flat therein will be able to enforce the observance of the restrictions by the owners or occupiers for the time being”.

11 By clause 2 the [NAME] covenants with [NAME] and with the owners and lessees of the other flats in [NAME] to observe the restrictions set out in the First Schedule. The First Schedule includes the following provision at clause 1/15 of that Schedule:

“The demised premises shall not be used or permitted to be used for any purpose whatsoever other than as a private residential flat in one family occupation nor for any purpose from which a nuisance annoyance or disturbance can arise to the owners lessees or occupiers of the other parts of [NAME] nor for any illegal or immoral purpose nor shall any auction be held therein at any time”.

12 Paragraph 1/16 of the same Schedule states:

“No act or thing shall be done or permitted which may render void or voidable any policy of insurance or cause an increased premium to be payable”.

13 Clause 3 contains further covenants on the part of the [NAME], in particular:

“3(C) Not to make any structural alterations or structural additions to the flat nor to erect any new buildings thereon or remove any of [NAME]’s fixtures or in any way to alter the exterior appearance of the Flat without the previous consent in writing of [NAME] such consent not to be unreasonably withheld”.

14 At clause 4 the [NAME] covenants with [NAME] and with the owner and lessees of other flats comprised in [NAME] as follows:

“4(A)(i) Remedy all defects in and keep the interior of the Flat in good and substantial repair and condition…. (ii) Without prejudice to the generality of Clause 4(A)(i) above the interior of the Flat includes (a) the internal partition walls (b)the glass

and all the moveable and opening part of the windows the internal window catches and sash cords the door to the balcony (if there be one) doors of the Flat (c) the ceilings below the level of the joists (d) the floors above the level of the joists (e) the interior faces of all the walls enclosing the Flat (f) all cisterns tanks sewers drains sanitary and water apparatus pipes and cables wires and appurtenances thereto belonging to and used exclusively by the occupants of the Flat and within the boundaries thereof.”

…….

“4(D) Not to do or permit to be done any act or thing which may cause any increase to extra premium to be payable for insurance of the Flat or [NAME] or any part thereof or which may render void or voidable any policy or policies of such insurance …

4(G) Use the Flat for the purpose of a private residence of one family only.

4(H) Keep the floors (except the kitchen and bathroom) close carpeted and under-felted and take every precaution for ensuring quietness in [NAME] including the placing of rubber insulators under any piano forte gramophone wireless or television set or any sewing machine washing machine spin dryer refrigerator or other machine kept in the Flat or take other effective means to deaden sound”.

15 The Issues

16 The issue before the Tribunal is whether or not there has been a breach by the Respondent of a covenant or condition in the Lease, in particular:

i has the Respondent allowed [NAME] to be used for a purpose other than as a private residence of one family in breach of clause 4(G) and paragraph 1/15 of the First Schedule to the Lease. If so, has that had the effect of causing an increase in [NAME] insurance premium for [NAME] in breach of clause 4(D) and paragraph 1/16 of the First Schedule (The First Issue);

ii has the Respondent carried out structural alterations or structural additions to [NAME] without the previous consent in writing of the Applicant in breach of clause 3(C) of the Lease (The Second Issue);

iii has the Respondent by installing laminate wood effect flooring throughout [NAME] committed a breach of clause 4(H) of the Lease (The Third Issue).

17. The First Issue

18. The Applicant’s case

19. Mr [APPELLANT] confirmed that the Applicant no longer seeks to rely for the purposes of this application on the allegation that there has been a breach

on the Respondent’s part of paragraph 1/16 of The First Schedule to the Lease or clause 4(D).

20. Mr [NAME] took the Tribunal through the provisions of the Lease. He referred to the a form of undertaking (126) dated 1 November 2018 signed by the Respondent whereby the Respondent undertook not to use [NAME] for short term lettings or “accommodation for transient/temporary occupiers” but which undertaking contained a proviso (added by the Respondent) that in giving the undertaking the Respondent did not accept that such use constituted a breach of the terms of the Lease. Prior to that undertaking Mr [RESPONDENT] said there had been a breach on the part of the Respondent. He referred to a printout from the ‘[NAME]’ website (58/61) which showed seven postings from guests who had stayed at [NAME] during the summer of 2018. The issue he said was whether the type of lettings which had taken place constituted a breach of the terms of the Lease.

21. Mr [NAME] referred to the Tribunal to [NAME] v. [COMPANY] (2016) UKUT 303(LC) and to [COMPANY] v. [NAME] [NAME] a decision of the County Court of Central London dated 1 May 2018. The relevant clause in [NAME] was said Mr [NAME] in very similar terms to that contained in the Lease. The clause in [NAME] was:

“not to use the Demised Premises or permit them to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence”

The provision in [NAME] was:

“not to use or permit the use of the Demised Premises or any part thereof otherwise than as a residential flat with the occupation of one family only…”.

The latter was Mr [NAME] submitted on “all fours” with the provision at clause 4(G) and paragraph 1/15 of The First Schedule to the Lease. The only material difference was the use of the word “private” in the Lease. If anything Mr [NAME] contended the use of the word “private” in the Lease strengthened the Applicant’s case.

22. There was Mr [APPELLANT] said no distinguishing feature in this case and accordingly the Tribunal was bound to follow the decisions in [NAME] and [NAME] and to find there was a breach. The key factor Mr [NAME] submitted was the question of the degree of permanence. As the Upper Tribunal put it at paragraph 53 in [NAME]:

“I have reached the view, consistent with the decision of the FtT, that the duration of the occupier’s occupation is material. It does seem to me that in order for a [NAME] to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. In my judgement, I do not consider that where a person occupies for a matter of days and then leaves it can be said that during the period of occupation he or she is using [NAME] as his or her private residence. The problem in such circumstances is that the occupation is transient, so transient that the occupier would not consider [NAME] he or she is staying in as being his or her private residence even for the time being”.

23. Further at paragraph 65 in [NAME] the County Court stated:

“….The covenant relates to the use of the flat as a “residential flat” only. What the Judge found was a series of arrangements for short term, transitory, occupation by strangers (to the Defendant) by way of what she described as “commercial hire”. She considered that the meaning of clause 2.4 was “clear” and it prohibited use of the flat for any “commercial” purpose “such as hotels or bed and breakfast style letting, for example through [NAME] or such letting as the Defendant had done”.

24. Further at paragraph 66

“…The user covenant is clear. Clause 2.4 is breached when the flat is not being used as a residential flat but as short term temporary accommodation for transient visitors paying for such use by way of commercial hire.”

25. The nub of the decisions in [NAME] and [NAME] Mr [NAME] submitted is the degree of permanence of lettings. That [NAME] lettings are not Assured Shorthold Tenancies. The occupiers are not committing themselves to occupying as residents. That the arrangement with [NAME] occupiers is purely one of expediency, a transient accommodation arrangement. That the only evidence before the Tribunal said [NAME] was the printout out from the [NAME] website in the bundle which shows in July and August 2018 seven reviews of the accommodation in quick succession. It was understood Mr [RESPONDENT] said that the Respondent only started advertising the accommodation at [NAME] in June 2018. [NAME] was located in a seaside town and no doubt he suggested in the summer some of the lettings at [NAME] would have been holiday lettings or other temporary accommodation.

26. The Respondent’s case

27. Mr [RESPONDENT] said that the undertakings signed by him (126) dated 1 November 2018 was not an admission of breach on his part nor he said was he asked to make an admission. The Applicant he said had produced no evidence of a letting pattern. That the lettings at [NAME] had been typically up to a month in length. The shortest perhaps 3 to 4 days. He had, he said many repeat guests. He mentioned a family who had needed temporary accommodation, a [NAME] who had just arrived in the country. The Lease Mr [NAME] said did not require him to obtain consent to sublet the whole of [NAME].

28. Mr [NAME] sought to distinguish [NAME] and [NAME] on the following grounds:

1. That as far as he was aware there had been no complaints from other residents in the building.

2. That he had not let [NAME] out on a bed and breakfast basis or as an hotel.

3. That he did not offer accommodation for hen or stag parties.

4. That he received repeat bookings from the same family.

5. That the average period of lettings had been for a much longer period than that referred to in [NAME] and [NAME].

6. That he had not offered to cook food or provide meals for occupants.

7. He did not believe that all of the Leases at [ADDRESS] were on common terms as was the case [NAME] (see paragraph 63 of that Decision).

8. That Mr [NAME] flat had its own separate private entrance. Occupiers did not use a common entrance and were not therefore occupying “cheek by jowl” with other residents.

9. That the provisions in the Lease relating to subletting and alienation differed from that referred to in the authorities relied on by the Applicant.

29. That the term “private residence” as in [APPELLANT] was not Mr [NAME] said interchangeable with the terms in the Lease.

30. Mr [NAME] made reference to a decision of the Leasehold Valuation Tribunal (as it then was) [COMPANY] v. [NAME] and Baig (2012). That he said was a decision which supported his contention that the use of [NAME] for short term lettings was not a breach of the covenant to use [NAME] as a private residence of one family only.

31. In response Mr [NAME] said that there were 6 flats at [ADDRESS] (a building converted into flats) which were all held on long Leases on common terms.

32. The Tribunal’s Decision

33. Each case is fact specific. It is for the Tribunal to consider closely the terms of the Lease and in particular the covenant at clause 4(G) and paragraph 1/15 of The First Schedule. It is assisted by the authorities referred to by the Applicant and to the extent that the terms of the Lease may be “on all fours” with those decisions the Tribunal is bound by them. The Tribunal is not bound by the [ADDRESS] of the Leasehold Valuation Tribunal relied upon by Mr [NAME] which predates the Decisions in [NAME] and [NAME].

34. The covenant in this case requires the [NAME] not to use [NAME] otherwise than as “a private residence of one family only” (clause 4(G) or

for any purpose whatsoever “other than as a private residential flat in one family occupation” (paragraph 1/15 of The First Schedule).

35. It is noteworthy in the view of the Tribunal that paragraph 9 of the Recitals to the Lease makes it clear that [NAME] has or intends to grant Leases of other flats to contain Restrictions similar to those set out in The First Schedule to the Lease, no doubt including that at paragraph 1/15. As in [NAME] the context in this case is that of residents of flats living with and only with other residents. The Tribunal agrees with the Applicant that in considering the words “private residence for one family only” and similarly “private residential flat in one family occupation” that the duration and degree of permanence of residency is a key factor. In the view of the Tribunal the occupation of [NAME] pursuant to [NAME] arrangements during the summer of 2018 was not of a nature that could reasonably be said to have any degree of permanence. The occupancies seemingly could be measured in days or at most as Mr [NAME] said one month. Such occupiers could not have understood or believed that they were occupying [NAME] during their [COMPANY] period of occupation as their private residence. Their occupation was of a temporary or transient nature. There was no degree of permanence such that an occupier could consider [NAME] as his or her private residence.

36. For those these reasons the Tribunal determines that the occupation of [NAME] by third parties during the summer of 2018 pursuant to the [NAME] scheme did amount to a breach of both clause 4(G) and paragraph 1/15 of the First Schedule of the Lease. The Tribunal notes that and understands that that breach is no longer continuing.

37. The Second Issue

38. The Applicant’s Case

39. The works of alteration which the Applicant says the Respondent has carried out at [NAME] without consent as required by clause 3(C) of the Lease as set out in the Applicant’s Reply (129 – 135). They are as follows:-

40. Electrical works

41. Those works included the Applicant says the installation of a new consumer unit and full rewiring throughout [NAME]. The need for the Respondent to obtain written consent for those works has been the Applicant says admitted by the Respondent. Mr [COUNSEL] referred to an email from the Respondent’s Solicitor to the Applicant’s Managing Agents dated 5 June 2018 (105). Under the heading of “rewiring of whole flat involving new circuits” the email states “Our client acknowledges that he should have obtained consent”.

42. Mr [NAME] also referred to a response to that email (85) dated 16 June 2018 in which the Managing Agent states “had your client have applied for prior written consent, as he should have done, the consent would have been granted subject to the person carrying out the work to be a competent person i.e. a qualified electrician. [NAME]

may accept a competent person being called in after the event to check everything over and correct any problems that is not the point. No doubt your client is using the modified electrical installation now without holding a valid electrical safety certificate”.

43. The Applicant understood Mr [APPELLANT] said that as such the consent referred to by the Respondent’s Solicitor in the email of 5 June 2018 was the need to obtain consent to carry out the electrical works in accordance with the terms of the Lease. As such he submitted there was admission of breach on the Respondent’s part.

44. In any event Mr [RESPONDENT] said the works were of a nature which did require permission pursuant to clause 3(C) of the Lease being works amounting to structural alterations. That works constituting structural alterations were not [COMPANY] to works carried out for example to external walls or supporting structures. They were works which interfered with the fabric of the building. That it mattered not whether or not the fabric in question was load bearing. He referred the Tribunal to the Court of Appeal Decision in [NAME] v. [NAME] and Governors of Harrow School (1978) EWCA Civ 5.

45. Rewiring Mr [NAME] contended involved carrying out work behind the surface of the faces of the walls of the demise. That it involved breaking through walls. That it was invasive. That accordingly such work was of a structural nature and accordingly consent was required pursuant to clause 3(C). Mr [NAME] submitted that where such internal works were carried out of alteration or renewal that the Applicant had an acute interest in those works to ensure that they are done properly and did not have an adverse impact on the freehold reversion. That the works were of such an invasive nature that they must amount to a structural alternation. That for example the installation a new modern consumer board could not be considered a like for like replacement.

46. Partition Wall

47. The Lease Plan (24) shows a form of partition wall between the kitchen at [NAME] and the lounge and hallway. The wall (and door within the wall) had at some time in the past been removed. That the Respondent has since constructed a new partition wall and installed a new door without consent. The Applicant did not Mr [APPELLANT] said have any direct knowledge as to whether the original configuration had been removed by a predecessor in title of the Respondents. However during a meeting at [NAME] between Mr [RESPONDENT] of the Management Company and the Respondent, Mr [RESPONDENT] had said that the wall should be replaced. That the Respondent had accepted that the wall and door had to be replaced. That conversation did not Mr [NAME] submit amount to consent pursuant to the terms of the Lease. That is because clause 3(C) requires prior written consent. That to enable [NAME] to be satisfied that the works were carried out properly and compliant with Building Regulations and Fire Safety Rules. There was Mr [RESPONDENT] said, if it were contended by the Respondent, no waiver on the Applicant’s part to reply upon clause 3(C). That the nature of the works carried out fell within the definition of structural alterations or additions. That it mattered not whether the wall

was load bearing. Its construction amounted to work to the fabric of [NAME] (as per [NAME]) and as such consent was required pursuant to clause 3(C) which consent had not been granted.

48. Kitchen Refurbishment

49. Mr [APPELLANT] confirmed that the Applicant was not pursuing this matter. That on the basis that the Applicant understood that the works carried out were essentially just the replacement of kitchen units and cupboards and the installation of a new cooker and hob. On that basis and that basis only the Applicant accepted that the works did not amount to a structural alternation.

50. Bathroom Refurbishment

51. The Applicant says that the works carried out amounted to a full refurbishment of the bathroom including the creation of an airing cupboard, the installation of a new hot water cylinder and the fitting of a new shower cubicle and fittings. That it was understood that the works included relocating the hot water cylinder from the kitchen to the bathroom. That such works must have involved the installation of new pipework. That the works included the routing of an overflow pipe from the hot water cylinder through an external wall which Mr [NAME] said on any analysis given that involved cutting through the structure of [NAME] must be works of a structural nature. Similarly that the construction of a new cupboard around the boiler that would be tied into the walls of the demise amounted to an interruption with the structure i.e. the fabric of [NAME]. As such the Applicant says consent to the works was required. It was not Mr [RESPONDENT] said satisfactory for the Respondent to argue that the Applicant had to prove what works had been carried out when the Respondent had access to that evidence and had chosen not to produce it.

52. Two Storage Heaters

53. The issue here the Applicant says is similar to that in relation to the installation of hot water cylinder. That the installation of new storage heaters involves integration into the existing services at [NAME]. That it was legitimate for [NAME] to have some control over such works. That their installation amounted to works to the fabric of [NAME].

54. Windows

55. The Respondent had, the Applicant says, replaced certain wooden windows at [NAME] with UPVC windows. That the Respondent had sought consent. Mr [RESPONDENT] referred to a draft Form of Consent (127) prepared by the Applicant. That was he said an undated and unsigned document clearly marked “draft”. That the granting of consent, as was clear from the face of the document, was conditional upon a number of matters being complied with by the Respondent. That included the production of a Registration Certificate from the “Assure” Scheme. The production from the [NAME] of a product brochure and user manual. That it was clear the Applicant says that the Respondent

understood the need to obtain consent hence the production of the draft Licence. That in the event consent had not been granted because the conditions had not been complied with but nonetheless the works had been carried out. That the Respondent having asked for consent simply lost patience and got on with the works before consent was granted. That there was accordingly a breach of clause 3(C) of the Lease.

56. The Respondent’s Case

57. Electrical Works

58. Mr [RESPONDENT] said that the email at page 105 had been taken by the Applicant out of context. That reference to obtaining consent did not necessarily mean reference to obtaining consent under the terms of the Lease. In fact the email was referring to the need to obtain [NAME] to the works. There had been no admission.

59 Mr [NAME] said that none of the works carried out amounted to an alteration. That the need for the works had been caused by the ingress of water into [NAME] because of the Applicant’s failure to carry out repairs. Mr [APPELLANT] referred to the [NAME]’s covenants at clause 4 of the Lease (30 and 31). Clause 4(A)(i) he said required the [NAME] to remedy all defects to the interior of [NAME]. That further at clause 4(ii)(f) the interior of [NAME] was defined to include cisterns tanks etc. That definition Mr [NAME] said covered electrical works. That what he has done was to simply carry out work to replace faulty items with ones that worked. That there were no works of alteration. That as such permission for the works was not required under the terms of the Lease. All he had done was to comply with his repairing obligations.

60. Partition Wall

61. [NAME] said that the partition wall had been removed before he purchased [NAME]. He did not feel that he was obliged to replace the partition wall but nonetheless had agreed to do so. That simply replacing or reinstating an internal wall did not amount to works of alteration.

62. Bathroom Refurbishment

63. Mr [NAME] said that when he purchased the flat it was in a poor state. That had been caused by the ingress of water due to a failure on the Applicants part to repair. That the works were not he said structural works. That the overflow pipe routed through the external wall could have been in place for many years. That the old cylinder must have had some form of pressure vent or overflow pipe. That the cylinder had been faulty and that he had simply instructed workmen to replace it.

64. The works carried out by him Mr [NAME] said were not comparable with the works carried out in [NAME]. That in [NAME] the work had been to change a coal fired heating system for a gas system. That the works carried out in [NAME] were major works which included works effecting load bearing walls. They were Mr [NAME] said “major works”. That the works

that he carried out were not comparable. That he had only changed faulty components of the existing hot water system.

65. Storage Heaters

66. There were Mr [NAME] said two storage heaters at [NAME] both of which required replacing. One had been damaged by flooding and the other was faulty. All he had done was replace the faulty storage heaters. They were not works of alteration that required consent.

67. Windows

68. Mr [NAME] said that the old windows had been inspected by him with the Applicant and that they had agreed that they needed replacing. That he has been told by Mr [NAME] that he would need to get retrospective written consent. With reference to the unsigned draft Form of Consent (127) the [NAME] did not provide a product manual or user manual (a user manual was not needed Mr [NAME] said to try and understand how to open a window). That the [COMPANY] were not able to obtain an “Assure” Registration Certificate. Upon being questioned by the Tribunal Mr [NAME] very reasonably said that he nonetheless accepted that he was required under the terms of the Lease to obtain written consent for these works. He had he said acted in good faith in the belief that he had consent and had provided all that the Applicant had asked for.

69. The Tribunal’s Decision

70. Clause 3(C) of the Lease it will be recalled provides as follows:

“Not to make any structural alterations or structural additions to the flat nor to erect any new buildings thereon or remove any of the Lessors’ fixtures or in any way to alter the exterior appearance of the Flat without the previous consent in writing of [NAME] such consent not to be unreasonably withheld”.

71. The Tribunal is concerned solely with the issue as to whether or not there has been a breach of this clause by the Respondent. In particular whether the Respondent has carried out structural alterations or structural additions to [NAME] without obtaining the previous consent in writing of the Applicant.

72. The Applicant says that the works carried out by the Respondent are of a structural nature because they involve of the fabric of [NAME]. That it matters not whether the fabric in question is load bearing ([RESPONDENT]).

73. Save where he has made admissions, the Respondent says that he is not required to obtain consent because the works carried out by him are not in the nature of alterations or additions. That they are works that he was required to carry out in order to comply with the covenant at clause 4(A) of the Lease being works to remedy defects to the interior of [NAME] and to keep it in good and substantive repair and condition. In particular the Respondent says that the term “interior of the flat” includes by reference to clause 4(A)(ii)(f) cisterns, tanks, sewers etc.

74. Although the Tribunal may be assisted by authorities cited to it such as [NAME] it must primarily consider the natural and ordinary meaning of the wording of clause 3(C) in the context of the whole of the Lease having regard as far as it can to all of the relevant circumstances that would have been known to the original parties to the Lease.

75. Clause 3(C) requires consent in writing to be obtained by the [NAME] prior to carrying out works which amount to “structural alterations” or “structural additions”. Consent is also required if the [NAME] wishes to remove any of [NAME]’s fixtures or alter the exterior appearance of the flat.

76. In considering whether the works carried out by the Respondent are structural alterations or structural additions the Tribunal is of the view that it has to look at both whether the works are of a structural nature and whether they amount to alterations or additions. [NAME] says that “structural” means works that involve the fabric of the building as it was put by [ADDRESS]:

“ “Structural” in this context means, I believe, something which involves the fabric of the house as opposed to the provision merely of a piece of equipment. It matters not whether the fabric in question is load bearing or otherwise, if there is any substantial alteration, extension or addition to the fabric of the house the words of the schedule are satisfied”.

77. The works in [NAME] were substantial works. They were substantial works of alteration and addition to the structure of the house. They were works to install a modern gas fired full central heating system to include 18 radiators and towel rails. They were works to supply hot water to baths and sinks. They were works to replace a coal fired boiler in the kitchen supplying hot water for sinks and baths and 2 radiators. The rooms in the house previously having been heated by ordinary coal fires. They were substantial works in the sense that they were adding something new to the structure of the house amounting to alterations and additions to the structure.

78. The Tribunal has considered clause 3(C) in the context of the Lease as a whole and in particular has had regard to the [NAME]’s covenants at clause 4. As set out above clause 4(A)(i) requires the [NAME] to “Remedy all defects in and keep the interior of the Flat in good and substantial repair and condition……”. Clause 4(A)(ii) goes on to state that “the interior of the flat” includes internal partition walls and at sub clause (f) “all cisterns tanks sewers drains sanitary and water apparatus pipes and cables wires and appurtenances thereto belonging to and used exclusively by the occupants of the Flat and within the boundaries thereof”.

79. In the view of the Tribunal having regard to the terms of the Lease as a whole it could not have been the intention of the original parties nor of the draftsman that the [NAME] was on the one hand required to remedy all defects etc. in accordance with clause 4(A) but at the same time would be required to seek the previous written consent from [NAME] to carry out such works. That arguably could give rise to an absurd situation whereby

consent was refused by [NAME] thereby preventing the [NAME] from complying with his repairing obligations. There is a difference between works of alteration and addition (whether structural, as in [NAME], or otherwise) and works to remedy defects or works to keep [NAME] in good and substantial repair and condition. To the extent therefore that the works carried out by the Respondent do not amount to works of alteration or addition (whether structural or otherwise) then consent pursuant to clause 3(C) for such works is not in the view of the Tribunal required.

80. Electrical Wiring

81. The Applicant says that there has been admission on the part of the Respondent that consent is required for these works. The Respondent says the reference in the email from his Solicitor dated 5 June 2018 (105) was not an acknowledgement that he was required to obtain consent under the terms of the Lease to the works but acknowledgement that he was required to obtain consent from [NAME]. That the Applicant may have understood, the Respondent says wrongly, that he was acknowledging that he required consent under the terms of the Lease but it was wrong to do so.

82. On balance the Tribunal is of the view that it has insufficient evidence before it to make a determination that there has been an admission on the part of the Respondent. It notes that the email of 5 June 2018 goes on to say “However, having spoken to [NAME] they indicate that our client would need to have a qualified electrical connecting up to the electricity and such confirmation provided to you”. If anything the reference to [NAME] (which is in the following sentence to that in which the Respondent’s solicitor acknowledges that consent is required) suggests on balance that the consent being referred to is that to be obtained from [NAME] as opposed to that required under the terms of the Lease.

83. The definition of the interior of the flat which the [NAME] is required to keep in substantial repair and condition and to remedy all defects in includes “cables, wires and appurtenances thereto”. In the view of the Tribunal works of rewiring are not works of alteration or addition. They are works to remedy defects. They may involve some degree of modernisation to comply with current standards and practices but nonetheless that does not make them works of alteration or addition. They are not works for which consent is required to be obtained by the Respondent pursuant to clause 3(C) of the Lease and as such the Tribunal finds that there is no breach of that provision on the Respondent’s part.

84. Partition Wall

85. Internal partition walls are defined at clause 4 of the Lease as being part of the interior of the flat for which the Respondent is responsible for keeping in good and substantial repair and condition. The Tribunal notes that the Applicant has not had an opportunity to inspect the internal wall erected by the Respondent. However in the view of the Tribunal to the extent that the erection of a new wall by the Respondent was simply to

replace a wall previously removed by a predecessor in title such works are not works of alteration or addition. They are works to remedy a defect or of repair consistent with the covenant on the Respondent’s part at clause 4(A). As such they are not works in the view of the Tribunal which require consent pursuant to clause 3(C) and accordingly the Tribunal finds that there was no breach in that regard on the part of the Respondent.

86. Bathroom Refurbishment

87. For the same reasons the Tribunal is of the view that these are not works of alteration or addition. It is unclear whether or not the outflow pipe that passes through the external wall was already in place or was inserted as part of the works of refurbishment. Clearly there will be a degree, as in other works, of modernisation. In the view of the Tribunal simply modernising or updating elements of the interior of the flat are not works of alteration or addition. For those reasons the Tribunal determines that there has been no breach on the Respondent’s part of clause 3(C) of the Lease.

88. Storage Heaters

89. The Tribunal determines that these were not works of alternation or addition. They were simply works to replace existing storage heaters that had failed. They were works to remedy a defect and/or works to repair part of the interior of [NAME]. As such the Tribunal determines that there is no breach on the Respondent’s part of clause 3(C) of the Lease.

90. Windows

91. The Respondent has admitted that he was required to obtain consent pursuant to clause 3(C) of the Lease before carrying out works to the windows. As such by reason of Section 168(2)(b) of the Commonhold and Leasehold Reform Act 2002 the Applicant does not need a determination by the Tribunal. The Tribunal merely records the admission on the Respondent’s part.

92. The Third Issue

93. Applicant’s Case

94. The Applicant says clause 4(H) of the Lease is clear. That the Tribunal simply has to determine whether or not there has been a breach of that clause. That the Respondent’s case as set out in Mr [RESPONDENT] [NAME] (99) appeared to be that there had been a failure on the Applicant’s part to explain to him what was meant by the term “close carpeted” so that he couldn’t know what he should do to replace damaged carpets. Further that the suggestion made by the Respondent’s Solicitor in a letter dated 22 June 2018 (92) that there could not be problems with noise emanating from [NAME] because of underlay placed below the laminate flooring missed the point. This Mr [NAME] said was not a case of his client being pedantic. That although [NAME] is a ground floor flat it enjoys a party wall with other flats through which sound can travel. That as such clause 4(H) does secure a benefit of other Lessees in the building.

95. The Respondent’s Case

96. Mr [RESPONDENT] said that he had to remove the existing flooring because of water penetration. That he had asked the Applicant for guidance as to what constituted the term “close carpeted”. That had not been forthcoming. That he had he said spoken to [NAME] who either had not heard of the term or gave conflicting advice. That it was Mr [APPELLANT] said unreasonable for the Applicant to demand compliance with a covenant which could not be explained and which arose because of damage occasioned by the Applicant’s alleged failure to repair. The laminate flooring he said had been down for eighteen months and that he was not aware of any complaints received from other Lessees or occupiers of the building. He believed that other ground floor flats in the building had laminate floors. That the wall separating [NAME] from other flats was originally an exterior wall and was therefore thick with no potential for noise transference.

97. Mr [NAME] referred the Tribunal to a First Tier Tribunal case of [COMPANY] v. Lakovidou (2014).

98. The Tribunal’s Decision

99. In the view of the Tribunal of clause 4(H) is clear. It requires the [NAME] to keep all floors at [NAME] except the kitchen and bathroom “close carpeted and under felted”. That the words “close carpeted” mean laying carpets flush to the inner face of the walls of [NAME]. What might be referred to as fitted carpets. Even if that were wrong it requires at the very least for carpet and under felt to be laid. Whether or not there is noise transference from the flat by reason of the laminate floors instead of carpets and whether or not there have been complaints from other occupiers of the building is irrelevant. The mischief aimed at by the clause to prevent noise transference may or may not have been breached but the strict terms of the clause in the view of the Tribunal have. The Tribunal is not assisted by the Decision of the First Tier Tribunal in [COMPANY] v. Lakovidou. The Tribunal is not bound by that Decision nor in any event is the Tribunal persuaded that the Decision supports the Respondent’s case.

100. The Tribunal accordingly determines that the Respondent is in breach of clause 4(H) of the Lease by failing to keep the floors at [NAME] (save for the kitchen and bathroom) close carpeted and under felted.

101 Other Matters

102. At the conclusion of the hearing on 26 March Mr [RESPONDENT] made an application for reimbursement from the Respondent of the application fee and hearing fee paid by the Applicant to the Tribunal pursuant to Rule 13(2) of the Tribunal Procedure (Frist-Tier Tribunal) ([NAME] Chamber) Rules 2013 (The Procedure Rules).

103. The Applicant has succeeded in respect of two of the issues identified in this Decision. It has not succeeded in relation to its contention that prior

written consent was required in respect of the various works carried out by the Respondent at [NAME]. In all the circumstances it is in the view of the Tribunal reasonable to order the Respondent to reimburse to the Applicant one half of the fees paid by the Applicant to the Tribunal.

104. At the conclusion of the hearing on 26 March Mr [NAME] indicated that he was minded to make an application for costs. Although he represented himself before the Tribunal he had he said incurred costs in seeking legal advice. Rule 13(5) of the Procedure Rules provides that a party to proceedings before the Tribunal may make an application for costs pursuant to Rule 13 at any time during the proceedings or within 28 days after the date on which the Tribunal sends the parties its Decision. That a party who wishes to make an application for costs after receipt of the Tribunal’s Decision must send or deliver the application to the Tribunal and to the other party. The application may include a schedule of the costs claimed in sufficient detail to allow summary assessment of such costs by the Tribunal (Rule 13 (4)(b)).

105. In the circumstances if either party wishes to make an application for costs pursuant to Rule 13 it is open for them to do so pursuant to the Procedure Rules.

106. If either party is minded to make an application for costs they may find it helpful to first consider carefully the circumstances under Rule 13(1)(b) of the Procedure Rules in which the Tribunal may make an order for costs and the decision of the Upper Tribunal (Lands Chamber) in [ADDRESS] Company (1985) [COMPANY] and [NAME] v. [NAME] and [NAME] (2016) UKUT 0290 (LC).

107. Summary of Decision

108. The Tribunal determines as follows:

1. That by using [NAME] to provide short term lettings through the online portal [NAME] the Respondent committed a breach of the covenant in his Lease at clause 4(G) and at paragraph 15 to The First Schedule thereof.

2. That the works carried out to [NAME] by the Respondent do not amount to works of structural alteration or addition and as such do not require prior written consent from the Applicant pursuant to clause 3(C) of the Lease. Accordingly the Respondent is not in breach of clause 3(C) of the Lease. The Tribunal notes however that the Respondent admits that he was required to obtain consent to work to replace the windows pursuant to clause 3(C).

3. That by failing to keep [NAME] close carpeted (save for the floors to the bathroom and kitchen) the Respondent is in breach of clause 4(H) of the Lease.

4. The Respondent shall within 28 days of receipt by him of this decision reimburse the Applicant 50% of the Tribunal fees paid by the Applicant.

Dated this 8th day of April 2019

Judge [NAME]

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28-day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.