No discretion by a landlord

There has been a recent Court of Appeal case which will be of interest to both landlords and tenants.

The case involved a flat in Maida Vale, London. The tenant of the flat wanted to carry out alterations which involved cutting into several walls of the flat. However, there was an absolute covenant by the tenant in their lease against making any structural alterations. Despite that the landlord did not think that works intended were unreasonable and therefore gave the tenant a licence to carry out the alterations.

However the long lessees of other flats in the building objected and pointed out that the landlord had covenanted with them in their leases that all leases in the building were to contain similar covenants and further a covenant that the landlord would enforce those covenants at the request of the other tenants.

In response, the landlord argued that it would be the tenant who carried out the works and who would therefore be in breach, and not the landlord. However, the Court of Appeal disagreed with the landlord and held it would be a breach of covenant for the landlord to effectively permit or licence a breach of covenant by a tenant.

In addition, the Court of Appeal confirmed that an injunction might be granted to prevent such works being carried out by the tenant. In a case where works have already been completed, it is not entirely clear whether an injunction will be granted unless it is possible to prove that there has been real or significant loss or damage suffered by the tenants.

Quite clearly in certain circumstances, structural works carried out by another tenant of a building can be of significant importance both in relation to disruption and nuisance caused by such works but also should for any reason the works be carried out unsatisfactorily, thereby causing structural issues with the building or any other flats in the building. If that were to happen, this could make any affected flats in the building less saleable.

The clear advice to any tenant who becomes aware that another tenant is carrying out major works in their building is to take advice urgently from a solicitor and possibly also a building surveyor so that advice can be given as to whether appropriate action can be taken against the tenant carrying out the works or perhaps more likely, their landlord if the above facts exist.

If you wish to discuss this topic further or have any other questions, please contact Stephen Brower or any member of the Edwin Coe Property team.

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