First-tier Tribunal Rules Tenant in Breach of Lease Covenants

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AW/LBC/2024/0605 Property : 77 [ADDRESS] [POSTCODE] Applicant : [redacted] : Mr [COUNSEL] of counsel Respondent : [redacted] : No appearance Type of application : Determination of an alleged breach of covenant Tribunal member(s) : Judge Adrian Jack, Tribunal Member [NAME], Deputy District Judge Tim Samuel sitting as a Tribunal Member Venue : 10 [ADDRESS] [POSTCODE] Date of Decision : 12th March 2025

DECISION

1. The applicant landlord seeks a determination, under subsection 168(4) of the Commonhold and Leasehold Reform Act 2002, that the respondent tenant is in breach of various covenants contained in the lease. The applicant has also brought two other cases involving the same respondent and the same property for a determination in respect of Service Charges and Administration Charges which have been consolidated and dealt with separately (LON/00AW/LSC/2024/0660 and LON/00AW/LAC/2024/060.

2 2. The Tribunal gave directions on 30th October 2024. The landlord has complied with the directions, but the tenant has not engaged with the litigation at all and has not put forward any case in opposition to the landlord’s application. The tenant applied for an adjournment of the hearing listed for 12th March 2025, but this was refused by the Tribunal.

3. The Tribunal heard the matter on 12th March 2025. The landlord was represented by Mr [COUNSEL] of counsel. The tenant did not appear and was not represented. We heard live evidence from Ms [NAME], who confirmed her witness statement and responded to the Tribunal’s questions. The landlord also relied on a defects report dated 13th December 2024 made by [NAME](Hons) MRICS of [NAME], Chartered Surveyors. Both Ms [NAME] and Mr [NAME] put in evidence various photographs.

4. After the hearing commenced on 12th March 2025 just after 10am, the tenant sent an email timed at 10.11am with a number of photographs and an attachment said to show the cleaner stealing from the flat. The email did not reach the members of the panel until after the conclusion of the hearing and our making our decision. We have ignored it. In any event, it is unclear to what issue the email and its attachments went.

5. The landlord puts its case as follows: ‘4. By a lease dated 20 May 1981 and made between (1) [NAME] and [NAME] and (2) [NAME] and [NAME] the Flat was demised for a term of 99 years from 24 June 1977 (“the Lease”). Demise 5. Clause 1 of the Lease set out the extent of the demise of the Flat which is expressed as: “excluding the roof and the external walls of the said flat but including the ceiling plaster and the plaster of the external walls and further the internal walls dividing the rooms and parts of the said flat and also including the window frames glass and fastenings and doors all of which flat is shown edged red on the plan annexed hereto …” Reservations 6. The following rights are reserved to the Landlord under the Lease under clause 1: 18 Clause (ii) “The right at all reasonable times during the said term to enter upon such parts of the demised premises as may be necessary and with such materials as may be necessary connect to construct lay cleanse repair maintain inspect alter or replace any gutters pipes sewers drains watercourses channels conduits ducts flues wires cables or other services from and to any adjoining premises and other parts of the Building but subject always to the person exercising such right making good all damage thereby caused to the demised premises” Clause (iii) “The right at all reasonable times during the said term to carry out works for the purpose of repairing cleansing maintaining or renewing the adjoining premises or other parts of the Building causing as little disturbance as possible and making

3 good any damage caused” (iv) “The right at all reasonable times during the said term to enter upon the demised premises to view the state and condition of and to repair and maintain the demised premises the person exercising such right making good all damage thereby caused to the demised premises “ [NAME]

7. The following are the salient clauses in the Lease containing covenants on behalf of the Respondent: [redacted] demised premises throughout the term hereby granted (other than the partes thereof referred to in Clause 5 hereof) and all internal walls drains pipes cables wires heating and sanitary apparatus floors ceilings windows and doors and appurtenances thereto belonging as are included within the demised premises in good and substantial and tenantable repair and condition damage by fire and other insured risk excepted and in particular so as to support shelter and protect the parts of the building other than the demised premises in such good and substantial and tenantable repair and condition yield up the demised premises at the expiration or sooner determination of the terms hereby created” Clause 3 (v) “Without prejudice to the generality of the previous sub-clause once in every seven years of the term and also during the last three months or at the sooner determination thereof paint all the inside wood and ironwork usually painted of the demised premises with two coats of good paint in a proper and workmanlike manner and also paint or paper all ceilings and walls as the same are now whitened painted and papered” Clause 3 (vii) “To permit the Landlord and any person authorised by him to enter upon the demised premises at all reasonable hours during the daytime to view the state and condition of the same and of all defects decays and wants of reparation there found to give notice in writing to the Tenant” Clause 3 (vx) (a) “To comply in all respects with the provisions of every enactment (which expression in this clause includes every Act of Parliament already or here after to be passed as well as every instrument regulation and bye law already or hereafter to be made thereunder) and every notice or order or proposal for a notice or order or proposal for a notice or order or licence consent permission or direction given or made thereunder so far as the same shall relate to or affect the demised premises or the user thereof or the employment or residence of any person therein or any fixtures machinery plant or chattels for the time being affixed thereto or placed thereon And to execute all works which under any enactment shall be required to be executed upon the demised premises whether by the Landlord or Tenant thereof And to indemnify the Landlord in respect of all such matters as aforesaid” Clause 3 (xi) “Not to use or suffer the demised premises to be used for any sale by auction or for any illegal or immoral purpose or for the sale of wine beer or spirits or as a club or so as to cause in the opinion of the Landlord any nuisance damage annoyance or disturbance (particularly by wireless or television

4 apparatus or any musical instrument) to the Landlord or to the owner or occupier of any adjoining or neighbouring premises” 19 Clause 3 (xii) “Not at any time during the term without the previous consent in writing of the Landlord and except in accordance with plans elevations sections and specifications previously submitted to and approved by the Landlord to make or suffer to be made any alteration or addition whatsoever in or to the demised premises or cut or injure or suffer to be cut or injured any of the main walls or timbers girders ceilings roofs or floors thereof PROVIDED ALWAYS that the Landlord may as a condition of giving any consent under this clause require the Tenant to enter into such covenants with the Landlord as the Landlord shall require in regard to the execution of any alteration or addition to the demised premises” Clause 3 (xiv) “Not to place or suspend or suffer to be placed or suspended any excessive weight on or from the floors ceilings or walls of the demised premises or erect or set up or suffer to be erected or set up upon the demised premises any machinery engine or other apparatus save the usual domestic appliances” Clause 3 (xviii) “Not to do or suffer any act or thing whereby any passageway or lawns appurtenant to the Building of which the demised premises form part or the passageways leading thereto may be damaged or obstructed or use or suffer the same to be used in such manner as to cause in the opinion of the Landlord any nuisance damage or annoyance to the Landlord or to the owner or occupier of any adjoining or neighbouring Premises” Clause 3 (xxiii) “To cause all the windows of the demised premises to be cleaned at least once a month and to be hung with curtains or curtains with linings of a neutral tint” Clause 3 (xxvii) “Not to leave any article of whatsoever description in or about the common entrance hall and staircases so as to cause an obstruction” Clause 3 (xxviii) “To deposit household refuse only in the area of the Building allocated by the Landlord for use by the Tenant for this purpose and to comply with the requirements of the Kensington Borough Council and the reasonable requirements of the Landlord concerning refuse disposal” Breaches of Lease 8. The Applicant asserts that the Respondent has breached the terms of the Lease as follows: Access 9. The Respondent has failed to permit the Applicant access to the Flat in breach of Clause 3 (vii) and the reservations particularised in paragraph 5 above.

10. On 21st October 2024 the Applicant gave notice of access needed to the Flat on 14th November. A further reminder was sent on 6th November 2024. On arrival access was refused on the basis that no one was present to facilitate. Disrepair

5 11. In breach of clause 3 (iv) the windows in the Flat have fallen into disrepair. The Defect Report details the decay on page 16.

12. In addition, quotes were obtained from Contractors during the recent major works, following the appointed Surveyor providing their recommended specifications of what needed to be done to bring the windows back into a satisfactory condition.

13. Survey 2 contains details of repair works, and alternatively Survey 3 for replacement. The [NAME] was sent these on 2nd October 2023 and 11th October 2023 respectively. Mr [NAME] replied on 13th October 2023, acknowledging the disrepair, but stating that he did not approve the quotes and would have the repairs done privately. On 19th October 2023 Mr [NAME] was given one month’s notice to repair or replace the windows. No repairs have been made to date 14. Further, the Respondent has failed to keep the windows cleaned in breach of clause 3 (xxiii). Building materials in communal parts 15. The Respondent has left building materials in the communal stairwell which is causing an obstruction and a fire safety risk. Further, any waste material within those materials left in the hallway have not been properly disposed of.

16. The Respondent has breached clause 3 (xviii), and clause 3 (xxvii) as the materials are causing an obstruction and further breached clause 3 (xxviii) as not properly disposed on the waste. Alterations 17. Due to the Respondent not facilitating access for an inspection of the Flat it has not been possible to ascertain all alterations that have taken place. A view from through the window shows the flat as a building site so works appear to be ongoing. The Applicant may wish to particularise further breaches upon getting knowledge of further breaches.

18. The alterations that the Applicant is aware have been carried out by the Respondent include: a. cutting a hole in the wall that separates the Flat with the communal stairway which has been filled with glass blocks; b. installation of a pipe up through the roof believed to be an extractor fan terminal as particularised in page 22 of the Defects Report; c. the installation of a sky light through the roof of the Building more particularised at page 23 or the Defects Report; d. the alteration of the rooflights to the Flat with the domed plastic rooflight having been removed along with the upstands and replaced with a new rooflight. Further details of the unauthorised works are at page 26 of the Defects Report.

19. In breach of clause 3 (xii) the Respondent has carried out these alterations in or to the demised premises without the Applicant’s consent and / in carrying out these works has cut the main walls, ceilings or roofs.

6 Water Tank / Framed housing 20. There is a water tank situated on the roof which serves the Top Floor Flat only, and the Respondent has extended this by building an enlarged framed housing to what was in situ. Further details are at page 26 of the Defects Report.

21. In breach of clause 3 (xii) the Respondent did not have consent to carry out any alteration to the housing of the tank.

22. Further or in the alternative, in breach of clause 3 (xiv) the Respondent is not permitted to place excessive weight on the demised premises, nor is he permitted to erect upon the demised premises apparatus.

23. The construction may have compromised the roof structure.

24. Further or in the alternative, the planning permission for the construction of the Flat (which is appended to the Lease) imposes as a condition at number 6 that: “No water tank, lift motor room or other roof structure shall be erected which rises above the level of the roof hereby approved (except to the dimension of that shown on the drawings hereby approved)” The enlargement of the tank has resulted in a breach of planning consent and was constructed without the necessary planning and listed building consents. This breaches clause 3 (vx) (a) . 21 CCTV / Satellite 25. The Respondent has installed two new satellite dishes with associated cabling onto the rear railing and a further two satellite to the chimney stack on the west side. Further details are at page 27 of the Defects Report.

26. The Applicant’s consent was not obtained.

27. The Respondent has also installed CCTV on the roof of the Building. Further details are at page 29 of the Defects Report.

28. In breach of clause 3 (xii) the Respondent has undertaken this work without the Landlord’s consent, and the works involved cutting the main walls, ceilings or roofs in order to fix the equipment.

29. Further or in the alternative in breach of clause 3 (xiv) the Respondent is not permitted to erect upon the demised premises any apparatus.

30. Further or in the alternative there is a breach of clause 3 (vx) (a) as listed building consent was not obtained.

31. Further or in the alternative, the Respondent is in breach of clause 3 (xi) as in the opinion of the Landlord the CCTV causes damage annoyance or disturbance to owner or occupiers of other premises. Access hatch 32. In carrying out unauthorised works upon the roof, the Respondent has broken the access hatch. Further details are at page 24 of the Defects Report.

7 33. In breach of clause 3 (xi) it is the opinion of the Landlord that this has caused damaged annoyance or disturbance to owner or occupiers of other premises, as will be necessary for the Applicant to arrange a repair at the cost to the service charge. Decoration to Roof 34. The Applicant had recently installed a new roof covering to the Building. The Respondent has decorated the roof membrane by painting this with white paint and paint has splashed down over the mansard slope staining the new slate covering. This roof is outside the demise of the Flat and the Respondent had no permission to do this.

35. By painting the membrane the warranty provided may have been invalidated, pending inspection by the manufacturer’s technical representative, as referenced at page 20 of the Defect Report.

36. In breach of clause 3 (xi) it is the opinion of the Landlord that this has caused damaged annoyance or disturbance to owner or occupiers of other premises, as will be necessary for the Applicant for further works of inspection to ensure the warranty is not invalidated at an additional cost to the service charge.

6. In our judgment the evidence of Ms [NAME] and Mr [NAME], coupled with the photographs in the bundle, makes out the breaches alleged.

7. The Tribunal has no jurisdiction as to whether any question of waiver arises. That is a matter for the County Court, if any proceedings are brought for forfeiture of the lease after service of a notice pursuant to section 146 of the Law of Property Act 1925: Kyriacou v Linden [2021] UKUT 288 (LC).

DECISION The breaches of covenants in the lease as alleged by the landlord and as set out in paragraph 5 above, have occurred.

Name: Judge Adrian Jack

Date: 12th March 2025