Tenant Wins Breach of Lease Case in First-tier Tribunal

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference :

CHI/24UD/[NAME]/2024/0006

Property : Garages at Plot 2 The [NAME] Rd, Netley Abbey, Southampton, [POSTCODE]

Applicant: [redacted] :

Mr [COUNSEL], Counsel

Respondent: [redacted]

[NAME] (1) [NAME] [COUNSEL] (2) Representative :

Mr [COUNSEL] in person

Type of application : Application for an Order under section 168(4) of [NAME] 2002

Tribunal member(s) : [NAME] [NAME] [NAME] of Hearing : 14 May 2025 Venue : Civil Justice Centre, Havant Date of Decision : 12 August 2025

DECISION

2

Decision

(1) The respondents are in breach of Schedule 4 Paragraph 8.1 of the lease by installing an electric vehicle charging point to the exterior of the garage.

(2) The respondents are in breach of Schedule 4, Paragraph 8.2 by making internal alterations to the garage by adding dry board plaster walls, electrical wiring, flooring and lighting without consent.

(3) The respondents are in breach of Schedule 5, Paragraph 1 by changing the permitted use of the demised premises from that of a garage to an office and gym.

(4) The respondents are in breach of Schedule 5 Paragraph 1, and clause 1.1 by operating a company [RESPONDENT] from the demise.

(5) The claim that the respondent is operating a company, [RESPONDENT] from the demised garages in breach of Schedule 5 Paragraph 1 and clause 1.1, is dismissed.

(6) The Tribunal orders under rule 13(1)(b) that the Respondents shall pay the applicant £750 within 28 days.

(7) The applications by the respondents for orders under section 20C of The Landlord and Tenant Act 1985 and Paragraph 5A, Schedule 11 of [NAME] 2002 are refused.

(8) The Tribunal orders that the respondents shall repay the applicant’s application and hearing fees within 28 days.

Reasons Background 1. The applicant seeks an Order under section 168(4) of [NAME] 2002 (“the Act”) that breaches of covenant or condition in the lease have occurred at the garages at Plot 2, The [NAME], Netley Abbey, Southampton [POSTCODE] (“the garages”).

2. The allegations as set out in the application were that the following had taken place, each of which was a breach of covenant:

i. The respondents had installed an electric vehicle charging point to the external walls of the garage;

3

ii. made internal alterations to the garage by converting at least part of the garage into a habitable room including installing dry board plaster walls, electrical wiring, flooring and lighting without seeking receiving the applicant’s consent;

iii. changed the use of the garage away from that permitted under the lease and used the garage as an office and/or gym;

iv. previously operated a [COMPANY], [COMPANY], from the garage, the company now being dissolved;

v. operated a [COMPANY], [RESPONDENT], from the garage.

The Hearing 3. The first respondent appeared and represented himself and the second respondent. The applicant was represented by Mr [COUNSEL], Counsel who provided a helpful skeleton argument.

Inspection 4. The Tribunal did not consider that an inspection was necessary.

The Property 5. The subject property is a pair of garages sitting below a detached coach house, forming part of a very recently constructed development. The applicant owns the freehold and occupies the first-floor residence above the garages, together with one garage. The respondents own an adjacent house. As an addition to their title, they also hold a long lease of the two garages. Procedural Matters Misuse of AI 6. In his skeleton argument and at the commencement of the hearing counsel pointed out that three cases cited by the respondents in their witness statements do not exist. Fortunately, the Tribunal had itself identified that these cases were suspect but is grateful to counsel. The citing of fake cases before a court or tribunal is always a serious matter and, in that respect, counsel referred to [NAME] v London Borough of Haringey [2025] EW HC 1040 (admin). However, that case concerned professional lawyers and neither of the respondents are lawyers. It was clear from Mr [NAME] responses to this that he had relied on computer programs which had provided incorrect information. The Tribunal did

4

not consider that the inclusion of the fake cases was intentional. This reduces the seriousness of the matter to a limited extent, but it does affect the credibility of the respondents because it demonstrates a lack of care in the preparation of evidence. Case Name 7. [NAME] [NAME] gave her surname as [NAME] in her witness statement, and the Tribunal directs that the case name be altered to that effect. The Law 8. Section 168 of the Act provides: (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 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. (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 application to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred.” The Lease Relevant Covenants 9. The subject lease is dated is dated 21 October 2020. It grants a term of 999 years at a peppercorn rent. The property is defined as the 2 garages on the ground floor of the building. Insofar as material to the subject case the following covenants are relevant.

10. Clause 1.1 defines permitted use as “…private garages ancillary to the private residential dwelling constructed on plot one for the storage of normal household items and/or the parking of a private motor vehicle”.

5

11. Schedule 4 paragraph 8.1 provides as follows: “not to make any external or structural alteration or addition to the property or make any opening in any boundary of the property or cut or maim any structural parts of the building”.

12. Schedule 4 paragraph 8.2 provides as follows: “not to make any internal non-structural alteration or addition to the property or alteration to the plan design or elevation of the property without the prior written consent of the landlord such consent not to be unreasonably withheld or delayed”.

13. Schedule 5, paragraph 1 provides: “not to use the property for any purpose other than for the permitted use or carry on any trade or business at the property.”

Costs

14. Schedule 4 Paragraph 7 of the lease states:

Costs To pay on demand the costs and expenses of the Landlord (including any solicitors', [NAME] or other professionals' fees, costs and expenses and any VAT on them) assessed on a full indemnity basis incurred by the Landlord (both during and after the end of the Term) in connection with or in contemplation of any of the following: 7.1 the enforcement of any of the Tenant Covenants; 7.2 preparing and serving any notice in connection with this lease under section 146 or 147 of the Law of Property Act 1925 or taking any proceedings under either of those sections, notwithstanding that forfeiture is avoided otherwise than by relief granted by the court; 7.3 preparing and serving any notice in connection with this lease under section 17 of the Landlord and Tenant (Covenants) Act 1995; 7.4 preparing and serving any notice under paragraph 4.3 of Schedule 3; and 7.5 any consent applied for under this lease, whether or not it is granted.

The Applicant’s case 15. [NAME] [APPELLANT] gave a witness statement verified by a statement of truth. Her evidence may be summarised as follows. On 17 December 2020 she completed her purchase of the freehold known as The Ascot Plot 2 The [NAME]. The respondent had previously purchased and moved into the Aintree, [NAME], which included a lease of garages at Plot 2. Prior to purchase, the applicant raised enquiries to the respondents (via solicitors) to ensure that the garages were being used in accordance with the lease. The respondents confirmed that that was so.

6

16. The garage has been converted to and is being used as a gym and/office in contravention of the permitted use under the lease. This is contained in an admission of the respondents in an email dated 2 December 2023. [NAME] [APPELLANT] was aware of extensive works carried out to convert the garage by virtue of the noise. The applicant asked to see inside the garage, but the respondent refused and swore at her. Subsequently the respondents constantly attended the garage, and the first respondent attended conference calls in the office space, as [NAME] [APPELLANT] could hear the conversation from parts of her accommodation.

17. In or around July 2022 the respondents sought to sell their property, and the applicant saw from marketing material the extent of alterations to the garage. Part of the garage had been converted to a habitable room with lighting plastered walls a desk, other décor, furnishings and carpets. The applicant had never consented to such use.

18. On or around 2 December 2023 the respondents received a legal letter; subsequently there was an increase in disturbance emanating from the garage and [NAME] [APPELLANT] decided to notify members of the Stables Management Company, comprising all other residents in the private road. The respondents responded to all members and confirmed that the garage was being used as a gym.

19. The applicant remains concerned that alterations have not been undertaken by professional tradesmen, and this may put her property at risk. The applicant has also noticed cracks in the party wall between the subject garages and her garage. She his not be able to instruct a building surveyor to inspect because the first respondent has denied access.

20. The respondents have also made alterations and additions to external parts of the garage by installing an electric car charging point. This occurred between 1 and 15 October 2023 when the applicant was abroad. She has never consented to this. The respondents have expressly admitted installation of the charging point in an email to the management company.

21. The garage is permitted only to be used as ancillary to a private residential dwelling for the storage of household items or for a private motor vehicle. In early 2022 the respondents were involved in a business whereby they rented out bouncy castles. The applicant noted this, as a huge trailer appeared to be turning in and out of the garages. Bouncy castles were regularly erected in front of her home, and jet washed. The business was a [COMPANY] known as [APPELLANT]. This also invalidated the applicant’s building insurance and rendered her liable to pay business rates.

22. Alterations to the garage were to convert it to working/office area and the administration of that or other businesses were conducted from the garage. [COMPANY] now operates from [NAME] and the garage. The only directors and shareholders are the respondent.

7

23. Mr [APPELLANT] also gave evidence on behalf of the applicant, having given a brief statement annexed to the witness statement of the applicant. He is the partner of [NAME] [APPELLANT]. His evidence was that he refuted claims made by Mr [NAME] that he had given him permission to attach a vehicle electric charging point to the building. A conversation between them did take place but at no point did Mr [NAME] discuss his interest in installing an electric vehicle charging point at the property. Mr [NAME] did not imply any consent to the installation of that device, discuss specific plans or arrangements for the installation. Mr [NAME] does not own the property, and he would have referred Mr [APPELLANT] to seek permissions from the applicant, who is the sole owner.

The Respondents’ Case 24. [NAME] [NAME] [NAME] gave a witness statement but did not attend the hearing to give evidence. No reason was given for the non-attendance and no application for an adjournment was made.

25. Her witness statement insofar as relevant to matters in issue, may be summarised as follows. The garage stores mobile gym equipment for the sole use of her and husband. The garage does have a temporary partitioned area with plastered stud walls, created by a reputable qualified professional. This was done to support the needs of their disabled daughter who has a serious medical condition preventing her from attending school since 2021. Owing to a deterioration in her health the space is no longer used. The subject area is not used as administrative headquarters for [COMPANY]. Rather it is used with her work as a nursing care expert. [NAME] [NAME] also has an office in her home. The partition was a minor and temporary adaptation the applicant failed to raise any concerns until her solicitors’ letter in November 2023 despite becoming aware of the structure in early 2022.

26. The EV charger was installed on 9 October 2023 by certified professional. There is pre-installed electrical trunking beneath the foundations of [NAME] which provides a predetermined route for the car charger installation. The route of the cable was not the respondents’ preference but predetermined at the time of the site development, so [NAME] [APPELLANT]’s position is unreasonable. This was a minor reasonable adaptation. During a conversation in September 2023 [NAME] [NAME] overheard her husband discussing the charger with [NAME] [APPELLANT] and [NAME] formed the impression that [NAME] [APPELLANT] or her partner would soon be buying an electric car. She did not raise any concerns in advance with the plan to install charger. The charger is aesthetically neat and tidy.

27. Mr [NAME] gave a witness statement, which omitted a statement of truth, but which may be summarised as follows. Use of garages as a

8

gym began in late 2020. This is common lawful and entirely within the reasonable expectations of garage use under the lease. Mr [NAME] had previously observed and commented positively on use of the gym.

28. The temporary structure was installed in early 2021 by [NAME] without structural alterations. The applicant became aware of this in 2022 but failed to raise concerns until November 2023. The applicants claim about a large crack is the first time this issue has ever been raised, and he is not aware of any defect in her garage. Mr [NAME] denied that there was a hostile relationship between himself and the applicant.

29. The EV charger was installed on 9 October 2023 by a certified professional. The pre-installed trunking beneath the house foundations provided the only practical installation route and installation on another wall would have required drilling a substantial hole from the pre-routed cable into the garage, then to an external garage wall and then through an additional wall to route the cabling. Although Mr [NAME] did not consider that he required permission, he discussed the installation with Mr [NAME] who did not raise objections.

30. Mr [NAME] also cited a number of legal arguments. Some of those legal arguments are derived from the fake cases which he has cited (see above). However, some true cases were cited. He argued that [NAME] v 11-13 [COMPANY] [2020] UKSC 18 establishes that the reasonable use of leasehold property in accordance with its intended purpose does not constitute a breach of covenant. Therefore, his use of the garages as a gym and the temporary structure and EV charger is reasonable and ancillary to the enjoyment of his property.

31. He also asserted from [NAME] v Mills [1999] UK HL 40 that breach of quiet enjoyment refers to a substantial interference with property rights. He argued that his gym use involved minimal noise often using headphones and was unobtrusive. His adaptations were entirely within his own garages and did not encroach upon or interfere with the applicant’s property.

32. Mr [APPELLANT] also argued, relying on [NAME] and Law Home [COMPANY] v Prestidge [1992] 1 WLR 137 that the applicant’s delay in bringing her claim had led to a waiver of her rights. He also argued that applying Arnold v Briton [2015] UKSC 36, his lease terms specify “use a garage ancillary to the residential dwelling” and his uses were entirely ancillary and did not alter the garages’ primary function.

Discussion and Findings 33. No explanation was given as to why [NAME] [NAME] did not attend to give evidence as she had provided a witness statement. This substantially reduces the weight given to that statement.

9

34. The Tribunal found that the applicant was a credible witness and where her evidence differs from that of Mr [NAME] it prefers her evidence, except in respect of the allegation that [NAME] and [COMPANY] was operating from the garage. The Tribunal also found Mr [NAME] to be credible and accepts his evidence. The Tribunal considers, in light of the fake cases that Mr [NAME] evidence must be treated with caution.

35. In terms of the true cases cited by the respondent the Tribunal does not find them relevant or persuasive in the context of this case. Duval v 11 to 13 [COMPANY] [2020] UK SCUK 18 did not establish that the reasonable use of leasehold property in line with its intended purpose does not constitute a breach of covenant. That case was concerned with whether a landlord was entitled to give consent to alterations in circumstances where such consent might contradict the terms of other of leases in the block. The factual matrix was wholly different.

36. [NAME] v Mills [1999] UK HL 40 was concerned with whether quiet enjoyment extended to impose an obligation on the landlord to improve sound insulation in blocks of flats. It was not concerned with alleged breaches of covenant by the tenant. Furthermore, an allegation of breach of quiet enjoyment by the respondent has not actually been made in terms; rather the applicant has supported her case in general by referencing the degree of nuisance that she has suffered as a result of the use of the gym directly below her home. Therefore, this case does not assist the respondents. [NAME] and Law Home [COMPANY] v Prestidge [1992] 1 WLR 137 was concerned with the priority of mortgages. It does not assist the respondents. In any event there was no excessive delay in bringing the case.

Individual breaches

37. The Tribunal finds that no permission has at any time been given by the applicant for any of the disputed works or change of use.

38. There is overwhelming evidence that an electric vehicle point has been installed, including admissions in both respondents witness statements and by a photograph. The same applies to the internal alterations.

39. In terms of the gym use, there are clear admissions in both the respondents witness statements, and by photographs.

40. As to use of the premises for business purposes there is sufficient evidence for the Tribunal to find this proved in respect of [APPELLANT], from the evidence of [NAME] [APPELLANT]. There is insufficient evidence in respect of [APPELLANT]. This is because there was insufficient evidence to how that it was operating from the garage as opposed from [NAME].

10

Costs 41. The applicant has made an application under rule 13 of the Tribunal Rules and relied on [ADDRESS] Co v Alexander [2016] UKUT 290 LC. In summary her case is as follows. Following the applicant’s letter in 2023 to the respondents notifying them of their breaches and publicising the matter to the management company, the first respondent engaged in name-calling and misrepresenting issues, and made unpleasant personal attacks on the applicant to embarrass her. The respondents have failed to engage in resolution of the matter. The respondents have caused noise nuisance. The installation of the electric charge was carried out in October 2023 when the applicant was away which was underhand and unscrupulous. The first respondent has denied the applicant access to the garages. The respondents have refused to engage in correspondence with the applicant’s solicitor. It would be manifestly unjust for the applicant to meet the costs associated with the respondents’ choice to ignore the dispute until action has been commenced.

Decision on rule 13(1)(b) costs 42. Under rule 13(1)(b) the Tribunal is concerned only with conduct following the commencement of proceedings in the Tribunal on 11 April 2024. The Tribunal finds that the language previously used to describe the applicant to be totally unacceptable. However, this took place prior to the issuing of proceedings. There is no legal obligation in the Tribunal for a respondent to participate in the proceedings unless subject to a witness summons.1 There is also no legal obligation for a respondent to engage with the applicant’s solicitors.

43. That leaves the matter of the fake cases. The Tribunal finds that this does amount to unreasonable conduct within rule 13(1)(b). It has decided that the misconduct is serious, being conduct that undermines civil litigation in the Tribunal. Therefore, the Tribunal determines that it should make a costs order. It considers that the costs order should be proportionate to the additional costs caused. It has decided that the appropriate quantum is half the costs of counsel’s fees in attending the hearing of 14 May 2025. These amount to £750 and must be paid to the applicant within 28 days.

44. Rule 13(1)(a) as referred to by the applicant is only relevant to misconduct by a representative. As the respondents were litigants in person it is not engaged.

1 Although they may face debarment for non-compliance with directions

11

Costs by way of an Administration Charge for Litigation Costs 45. The Applicant has applied for such costs at [228]2, although the reference to clause 16 appears incorrect. The applicant has not served a demand for legal costs as an administration charge on the respondent under the terms of the lease (see Para. 14 above). Therefore, at present, the Tribunal lacks jurisdiction to assess the reasonableness and payability of such charges. If the applicant wishes to make such an application, she should do so within 28 days using the appropriate application form for the determination of administration charges.

The Respondents’ Application for Orders under Section 20C and Para 5A 46. The respondents have made applications under section 20C of the Landlord and Tenant Act 1985 and Paragraph 5A, Schedule 11 of [NAME] 2002. Having regard to the findings by the tribunal and the conduct of the respondents these applications are refused.

Refund of Fees 47. The Tribunal orders that the respondents shall re-imburse the application and hearing fees to the applicant within 28 days.

12 August 2025

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 application for permission must be made to the First- tier Tribunal at the regional office which has been dealing with the case.

2 Square brackets denote bundle pages

12

The application for permission to appeal must arrive at the regional office 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. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).