Raja v Aviram (2016)

Unauthorised alterations

The background

The case concerned a semi-detached property in London which had been converted into two flats. Mr Raja, the Appellant, owned the freehold. The first-floor flat, 85A, was demised by a lease dated 20 December 1978 for a term of 99 years which contained in it a provision preventing the tenant from carrying out unauthorised alterations. The clause stated as follows:

“3(vii) The tenant will not at any time during the said term cut maim alter or injure any of the principal timbers, roofs or walls of the Flat .... or make any structural alterations or additions whatsoever in or to the Demised Premises externally or internally.... or make any alteration in the ... architectural appearance or exterior decorations of the demised premises without the consent in writing of the Lessor first obtained.”

The Respondent tenant, Mr Aviram, let the flat on short leases to occupational tenants. When the boiler broke, the Respondent instructed a plumber to install a new system which required a new exhaust vent and waste pipe to be placed through the wall of the property to the exterior. The consent of the Appellant was not sought prior to the works being carried out. During the installation, water leakage caused some damage to the ceiling of the ground floor flat which brought the case to the First-tier Tribunal.

The FTT held that, whilst it was clear that the new piping had been situated through the exterior wall of the property, it was not clear whether this was through gaps which were already present and therefore determined that there had been no breach of covenant by the Respondent.

The case went to appeal at the Upper Tribunal.

The law

The Upper Tribunal dismissed the reasoning from the tenant to the effect that his plumber had advised him that the new boiler would be a ‘like for like’ replacement. Lack of knowledge of the tenant was irrelevant as a new hole was required to be opened up for the installation and the tenant remains responsible for actions undertaken in respect of the property.

It should be implied that the tenant, by contracting the new boiler’s installation, had authorised the works to be carried out as the works could only be completed through the creation of a new hole in the wall.

The Upper Tribunal also dismissed the tenant’s claims that he had attempted to contact the landlord without success. There was no evidence that the tenant had sought consent to the works, despite having the landlord’s contact details available.

A covenant not to carry out works without the consent of the landlord is as clear as it suggests; if the landlord cannot be traced or contacted, the tenant will still be in breach if it continues to carry out the works. The landlord must be contacted in advance of works being carried out and presented with all of the relevant information, allowing it to properly consider the proposed works. Where a landlord unreasonably refuses consent, or does not respond to a validly-presented request, the tenant may go ahead without breaching the terms of its lease.

The decision

The Upper Tribunal held that clause 3 (vii) of the lease had been breached by the Respondent tenant. At least one new hole had been created in the exterior wall without the consent of the landlord having been obtained.

The Upper Tribunal’s decision makes it very clear that an application for consent to alterations must be made in advance of works being carried out.

JB Leitch’s Stuart Miles comments on the decision:

"This decision demonstrates the importance of tenants ensuring that they request consent prior to commencing work to alter their properties where the lease requires landlord’s consent. As can be gleaned from this decision, failure to obtain consent will result in the Tribunal awarding a determination that there has been a breach of lease. The decision suggests that the following submissions from tenants will not prevent a Tribunal from awarding in the landlord’s favour:-

1. the landlord cannot be located;
2. the landlord would have consented to the works had they have been approached by the tenant prior to the works commencing;
3. there was a mandatory requirement under a piece of legislation to do the works; or
4. the landlord had not served a S.47/48 Notice.

This decision sends out a clear warning to tenants that they will not be excused from departing from the terms of their lease when seeking to alter their properties. Tenants should consider the terms of their leases carefully before conducting such works, to avoid the risk of breach."