Tribunal Rules Tenant in Breach of Lease Covenants

OUTCOME: Allowed

© CROWN COPYRIGHT 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/26UG/LBC/2019/0001 Property : 24 Wyedale, London Colney, St Albans [POSTCODE] Applicant : [redacted] : [COUNSEL] [RESPONDENT] Respondent : [redacted] : [NAME] of Application : S168(4) Commonhold and Leasehold Reform Act 2002 – determination whether a breach of covenant or condition in the lease has occurred Tribunal Members : Judge John Hewitt Regional Judge Bruce Edgington Date of Decision : 20 February 2019

DECISION

2 The issues before the tribunal and its decisions 1. The single issue before the tribunal was whether a breach of certain

covenants in the lease has occurred.

2. In the event it was not disputed that those breaches of covenant had

occurred.

3. The decision of the tribunal is that breaches of covenants set out in

clauses 2(3), 3(1) and 3(2) (paragraph 2 of the Second Schedule) have

occurred.

(The full text of those covenants is set out in the Schedule to this

decision.)

4. The reasons for this decision are set out below.

General Background 5. The Property is a ground floor flat in a purpose-built block of 36 flats.

The subject lease is dated 19 September 1980. It was granted by

[RESPONDENT] to [RESPONDENT] and the

respondent [RESPONDENT] (Ms [RESPONDENT]) for a term of 99 years from 29

September 1979. On 29 June 1983 Ms [NAME] was registered at HM

Land Registry as sole proprietor of the lease.

6. Material covenants on the part of the [NAME] are set out in the Schedule

to this decision, but can be conveniently summarised as follows:

Clause 2(3) to carry out internal redecorations;

Clause 2(15) to permit entry to the landlord and its surveyor to inspect; Clause 3(1) to keep the flat in good and tenantable repair and condition;

and Clause 3(2) to perform and observe the obligations and restrictions

set out in the Second Schedule as regards: Paragraph 2 Not to do or permit a nuisance, annoyance to the landlord, the management company or occupiers of other flats; Paragraph 4 Not to throw dirt, rubbish, rags or other refuse into the sinks, baths or lavatories in the flat; and Paragraph 14 To clean the interior of the windows of the flat at least once a month.

7. On 21 January 2010 the applicant was registered at HM Land Registry

as the proprietor of the freehold interest and is the landlord.

8. In 2017 the applicant made an application to the tribunal pursuant to

s168(4) of the Act in which it sought a determination that breaches of

certain covenants in the lease had occurred. Case Reference

CAM/26UG/LBC/2017/0003 was allocated to the application. A

hearing chaired by Judge John Hewitt was held on 1 August 2017. Most

of the breaches alleged to have occurred were admitted by Ms [NAME].

The decision is dated 7 August 2017. That decision records that

breaches of the covenants set out in paragraph 6 above had occurred.

3 9. Subsequent to the August 2017 determination the applicant served on

Ms [APPELLANT] a notice pursuant to s146 Law of Property Act 1925 and on 7

December 2017 commenced court proceedings against Ms [APPELLANT] D01WD692. The applicant sought to forfeit the lease

and recover possession of the flat.

10. A defence and counterclaim was filed. Ms [NAME] sought relief

from forfeiture.

11. The court proceedings were compromised in the form of a [NAME]

order. It was made 24 September (and drawn 5 October) 2018. The

order records that Ms [APPELLANT] is granted relief from forfeiture and that

the claimant discontinued the claim. It also records an agreed position

on costs. The Schedule to the order records a number of matters

including an obligation on the part of Ms [NAME] to engage contractors

to clear accumulated possessions stored in the property and to address

other matters specified in the s146 notice.

12. The applicant takes the view that whilst some clearance and cleaning

up has been carried out it is insufficient. Given that the court

proceedings were finally concluded (as opposed to stayed on terms) the

applicant takes the view it needs to start the formal process again.

13. Thus, the present application was filed with the tribunal on 23 January

2019. The applicant sought a determination that since the August 2017

hearing breaches of covenants 2(3), 2(15), 3(1) and 3(2) - as regards

paragraphs 2 and 14 of the Second Schedule had occurred. The

applicant considered that the breaches had been admitted in the court

proceedings and it stated in the application form that it would be

content with a paper determination.

14. The tribunal sent to Ms [NAME] a letter dated 31 January 2019 seeking

information about her position with regard to the application so that

appropriate directions might be given. By a letter dated 14 February

2019 [NAME] – who had acted for Ms [NAME] in the court

proceedings replied. The gist of that letter was that it was admitted

some breaches of covenant had occurred since the August 2017 hearing

but it was denied that breaches of clause 2(15) and 3(2) – paragraph 14

were continuing. A copy of that letter was sent to the applicant’s

solicitors – [APPELLANT]. The applicant was invited to withdraw

the complaint about those two breaches, in which case Ms [NAME]

solicitors said that [we] “… ask that the matter can proceed by consent

with our client admitting the continuing breaches of clause 2(3),

clause 3(1) and clause 3(2) – paragraph 2 only.”

That letter also made clear Ms [NAME] wish to remedy the breaches as

soon as possible and outlined the medical and practical help Ms [NAME]

was receiving to that end.

15. By letter dated 15 February 2019 [APPELLANT] informed the

tribunal that the applicant was prepared to withdraw the allegations of

4

breaches in relation to clause 2(15) and clause 3(2) – paragraph 14. The

letter went on to request the tribunal to determine the application on

the papers.

16. In the circumstances set out above and with the consent of both parties

we determine that since the August 2017 hearing breaches of covenants

set out in clauses 2(3), 3(1) and 3(2) (paragraph 2 of the Second

Schedule) have occurred.

Dated 20 February 2019 Judge John Hewitt

The Schedule Material provision of the lease

2(3) 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 iron work usually painted of the Flat with two coats

of good paint in a proper and workmanlike manner and afterwards

varnish the parts usually varnished and also whitewash and paint or

paper all ceilings and walls as the same are now whitened painted or

papered.

(15) Permit the [NAME] and the Company and their respective Surveyors and Agents with or without workmen at all reasonable times upon reasonable notice during the said term to enter upon and examine the condition of the Flat and thereupon the [NAME] or the Company may serve upon the [NAME] notice in writing specifying any repairs necessary to be done and for which the [NAME] is directly responsible under the covenants hereinbefore contained and requiring the [NAME] forthwith to execute the same and if the [NAME] shall not within two months after the service of such notice commence and proceed diligently with the execution of such repairs then to permit the [NAME] and the Company and their respective Agents to enter upon the Flat and execute such repairs and the costs thereof shall be a debt immediately due from the [NAME] to the [NAME] or the Company as the case may be and shall be forthwith recoverable by action

3(1) Keep the Flat …. and all walls party walls sewers drains pipes cables wires timbers floors and ceilings and appurtenances in good and substantial and tenantable repair and condition and in particular to afford all necessary support shelter and protection to the parts of the Block other than the Flat …

(2) Perform and observe all and singular the obligations and restrictions set out in the Second Schedule hereto

The Second Schedule

2. Not to do or permit to be done any act or thing in or upon the Flat or any part thereof or any part of the Property which may be or

5 grow to be a damage nuisance or annoyance to the [NAME] or the Company or any of the occupiers of other parts of the Estate or to the neighbourhood

4. Not to throw dirt, rubbish, rags or other refuse into the sinks, baths or lavatories in the flat

14. To clean the interior of the windows of the Flat at least once a month

ANNEX - RIGHTS OF APPEAL

1. 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. 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.

3. 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.

4. 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.