First-tier Tribunal Rules Tenant in Breach of Lease for Unauthorised Alterations

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BF/LBC/2023/0024 Property : 89 [NAME], [NAME] [POSTCODE] Applicant : [redacted] : [COUNSEL] of [RESPONDENT] Respondent : [redacted] : N/A Type of application : s.168(4) of the Commonhold and Leasehold Reform Act 2002– breach of lease Tribunal member(s) : Judge Tagliavini Ms S Phillips MRICS Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 13 March 2024

DECISION

2

The Tribunal’s decision 1. The tribunal finds the respondent is in breach of clause 13 of the lease dated 3 July 1959 (as varied) due to the construction of hardstanding on the right side of the frontage in place of the front garden area and by reason of the removal of the front (right) boundary wall at 89 [NAME], [NAME] [POSTCODE] (‘the Property’).

2. The tribunal determines the applicant’s costs in the total sum of £4,318.00 are payable by the respondent. _____________________________________________________ Background 3. The subject Property comprises an upper maisonette in a detached house converted into two flats. Since 14/08/2018 the respondent has been the registered leasehold owner of the upper maisonette pursuant to a lease dated 3 July 1959 and a deed of variation dated 25 March 1996.

4. The demise granted to the respondent is described in the leases as,

…..FIRST ALL THAT piece of land situate at [NAME]

in the County of Surrey and which as to is position dimensions and

boundaries is particularly shown on the plan annexed hereto and

coloured pink AND SECONDLY ALL THAT maisonette know er (sic)

intended to be known as 80 [NAME] aforesaid (being

the upper floor of the building now standing upon the piece of land

particularly shown on the said plan and thereon coloured blue…….

5. The plan attached to the lease showed a pink area which included the right hand area (looking from [NAME]) coloured pink. The application 6. The applicant seeks the tribunal’s determination as to whether the respondent has breached certain clauses of the lease by the construction of an area of hardstanding and removal of the front boundary wall in order to use the land as a car parking space. The hearing 7. By a Notice dated 9 October 2023, the respondent was debarred from playing any further role in the application due to her persistent non compliance with the tribunal’s directions dated 17 May 2023 and further

3 directions dated 12 July 2023 and 14 August 2023. Subsequently, no application for reinstatement was made by the respondent and she remained debarred.

8. As the applicant did not request an oral HEARING, this application was determined on the papers, using the digital bundle of 106 pages provided by the applicant. This included a witness statement of [APPELLANT] dated The tribunal’s reasons 9. The relevant clauses of the lease state:

Clause 13

NOT at any time during the said term without the licence in writing of

the [NAME] first obtained to erect or place any additional building or

erection on any part of the demised premises other than a shed for

domestic purposes only and not without such licence as aforesaid to

make any alteration in the plan or elevation of the maisonette

building hereby demised or in any of the party walls or the principal

or bearing walls or timbers thereof nor construct any gateway or

opening in any of the fences bounding the demised premises.

Clause 15

NOT without such license as aforesaid to carry on or suffer to be carried

on in or upon the demised premises any upon the demised premises nor

to do or permit any act or thing which shall or may be or become a

nuisance damage annoyance or inconvenience to the [NAME] or his

tenants or the tenants of the adjoining premises and in particular of the

ground floor maisonette or to the neighbourhood.

10. The tribunal finds that when the respondent purchased her lease the right hand side of the frontage(coloured pink on the plan) was planted with grass and hedges and with a brick front wall separating the frontage from the street. The tribunal finds this was subsequently replaced by hardstanding and part of the wall on the right hand side was removed.

11. The tribunal finds the respondent has not sought to deny having made the alterations alleged by the applicant and finds she did not seek the applicant’s permission for these works or notify them of her application for planning permission. In a letter to the applicant dated 29 June 2023, the respondent stated,

‘………all I have done that has changed the front from grass to

gravel and removed a broken down wall. Mrs [NAME] said she

was doing the same so it worked for us to do this to make the

property more aesthetically pleasing.’

4 12. Although the respondent made an application for planning permission from the London Borough of [NAME] (‘[NAME]’) for the creation of hardstanding to part of the frontage of the Property on 8 August 2019, this was subsequently refused. Although enforcement action was considered by [NAME], on 30 March 2023 [NAME] made the decision that no enforcement action would be taken against the respondent and the case was closed.

13. Despite the lack of enforcement by [NAME], the tribunal finds the respondent has carried out works to the front area in breach of the clause 13 where it states:

‘…not without such licence as aforesaid to make any

alteration in the plan or elevation of the maisonette building

hereby demised…’

14. However, the tribunal finds the applicant has failed to demonstrate how the work carried out by the respondent has breached the terms of clause 15 Costs 15. Although no formal application for costs was made in the application, the applicant has sought to claim their costs in the Applicant’s Legal Submissions dated 20 December 2023. A Schedule of Costs was attached which claimed the sum of £6,125.00 in legal costs; £300 tribunal fees and £18.00 in land Registry fees. The tribunal considers it is reasonable and appropriate in all the circumstances to determine the issue of costs at the same time as the substantive issues.

16. In its submissions, the applicant submitted that pursuant to clause 3 of the lease the respondent has covenanted to,

FROM time to time during the said term to pay all costs charges and

expenses incurred by the [NAME] in abating a nuisance on the

demised premises … in obedience to a notice served by a local or

other competent authority

And pursuant to clause 17 of the lease, the respondent has covenanted,

TO pay all expenses (including Solicitor’s costs and surveyors

fees incurred by the [NAME] incidental to the preparation and

service of a notice under Section 146 of the Law of Property Act

1925 notwithstanding forfeiture is avoided otherwise than by

relief granted by the Court

17. The tribunal finds this application falls within the meaning of clause 17 of the lease but does not accept the [NAME] has incurred costs in abating any nuisance.

18. In the Summary of Costs, the applicant seeks the costs of [APPELLANT], a Grade A Fee Earner fee at the rate of £500 per hour for all work including

5 the preparation of an index to and compilation of the hearing bundle in a total sum of £4,500. Thereafter, the Schedule jumps without explanation to a sum of £6,125.00. Tribunal fees of £300 are also claimed as well as Land Registry Fees of £18.00. No VAT is claimed.

19. The tribunal determines the reasonable costs payable by the respondent are £4,000 plus £300 (tribunal fees) and £18.00 Land Registry Fees. The tribunal finds it unreasonable for a Grade A fee earner to have prepared an index or hearing bundle and disallows these costs. Further, in the absence of any explanation as to how the figure of £6,125.00 has been reached, the tribunal disallows the difference between this figure and the £4,000 allowed.

Name: Judge Tagliavini

Date: 13 March 2024

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 ([NAME]), then a written application for permission must be made to the First- tier Tribunal at the [NAME] which has been dealing with the case. The application should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber The application for permission to appeal must arrive at the [NAME] within 28 days after the Tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit. The application 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 making the application is seeking.

6 If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal ([NAME]).