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Cutting the wall without landlord’s consent – breaching the lease – no excuse that you cannot find the landlord

By Nicholas Kissen, Senior Legal Adviser

March 2016

On 23 February 2016 the Upper Tribunal (Lands Chamber) handed down its decision in the case of Raja and another v Aviram [2016] UKUT 0102 (LC).

The facts

Mr R owned the freehold of a two-storey, semi-detached house converted into two flats.

Mr A owned the lease of the first-floor flat which he let out to tenants.

The boiler in Mr A’s flat broke down and he instructed a plumber to install a new condensing boiler.

Installing the condensing boiler involved the insertion of a new exhaust vent and waste pipe through the side wall of the house.

Mr A’s lease contained a covenant not to cut the external walls without the prior written consent of the freeholder.

Such consent was not obtained before the works were undertaken.

Reasonable steps were taken to contact the freeholder but Mr A was not able to do so. In the circumstances, he proceeded with the works.

Acting on behalf of the freeholder, Mr R applied to the First-tier Tribunal (Property Chamber) (“the FTT”) under Section 168 of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) for a determination that among other matters a breach of the above obligation had taken place.

What did the FTT decide?

They decided, on the basis of the evidence it had heard, that there had been no breach of the said covenant and explained why.

They further found that Mr A had made reasonable efforts to locate Mr R to obtain his consent but could not find or contact him. The FTT concluded that it was difficult to see how consent for the works could have been obtained.

The freeholder appealed to the Upper Tribunal.

What did the Upper Tribunal decide?

The appeal was allowed.

New holes had been cut into the external walls and consent had undoubtedly not been obtained. There had been a breach of covenant.

The breach occurs where the freeholder’s consent has not been obtained.

This is so, even if the freeholder cannot be found.

By Sections 47 and 48 of the Landlord and Tenant Act 1987 a freeholder or immediate landlord is required to supply their leaseholders with a contact address before sums due under the lease become payable. The Upper Tribunal ruled that even if such details are not provided, this is not an excuse to carry out such alterations without consent.

In conclusion, Mr A’s argument that he did not know the landlord’s address was not a defence to a claim that alterations had been carried out without their consent.

Further information:

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