This case involved the leaseholder, Mr Aviram, carrying out works to his flat, in particular replacing his boiler. The new boiler required a new vent and waste pipe to be installed. The lease prohibited works to the external walls without consent of the freeholder.
Attempts were made by Mr Avariam to contact Mr Raja who was the freeholder. Despite these attempts he was unable to make contact Mr Raja. Therefore, Mr Aviram decided to press ahead with the works. Mr Raja, the freeholder then issued proceedings in the First Tier Tribunal (FTT) for a determination that there had been a breach of covenant under the lease. The FTT found that no breach had occurred. Mr Raja appealed that decision to the Upper Tribunal (UT)who allowed the appeal.
The UT found that the contractor had been instructed by Mr Aviram and, therefore, Mr Aviram was responsible for the consequences of his instructions. The only conclusion open to the FTT was that the terms of the lease had been breached as Mr Aviram had not obtained consent from the freeholder before carrying out works to the external wall. The fact that the freeholder would have consented did not alter matters. Further, failure by the freeholder to provide a name and address in accordance with sections 47 and 48 of the Landlord and Tenant Act 1987 did not allow the tenant to carry out works without consent where the lease provided for consent to be obtained.
However, despite the breach having been found to have occurred the judge did question the purpose of the claim and appeal pursued by the freeholder. The judge stated that a “modest breach of covenant has been committed…it seems unlikely that this valuable lease will be capable of being forfeited without relief being granted. Whether Mr Raja is entitled to any remedy at all (other than nominal damages) is not a question within the jurisdiction of this tribunal”.
The case highlights the importance of being aware of the terms of the lease and adhering to them. Simply making attempts to compel with the terms but not actually complying will not avoid a breach. Equally, though it highlights the importance of considering what a landlord wants to achieve when taking action against a leaseholder in relation to a breach of a lease. In this particular case it was clear that any attempt to seek to forfeit the lease as a result of the breach would almost certainly have been defeated by any application for relief from forfeiture. Landlord’s need to consider exactly what they want to achieve and whether or not those aims are likely to be achieved when taking steps to deal with a breach of lease. These decisions are of a practical and commercial nature as much legal.
For further information, please contact Neil Lawlor or Alex Wyatt.
