If you are considering making alterations to your flat or apartment, you must check what consents you need from the landlord to avoid breaching your lease. Lesley Brentnall, leasehold expert at Brady Solicitors explains.
If you purchase a leasehold property, your lease is likely to contain a covenant that requires you to seek the landlord’s permission for certain alterations and improvements. These can include fitting a wooden floor, installing windows, or making other structural alterations.
The extent of what constitutes a “structural alteration” may be unclear but, if in any doubt, it’s best to err on the side of caution and ensure consent is obtained before commencing work.
Consent can be achieved through applying for a Licence to Alter, a formal written document from your landlord, giving approval to the changes you wish to make to the property. Failure to secure a Licence to Alter will most likely result in a breach of the lease, with the ultimate and highly unwelcome risk of forfeiture of your lease.
If you wish to make a change to your property that requires a licence to alter, you must contact the landlord, give details of the proposed works and allow them a reasonable time to respond.
Where consent can’t be obtained, the burden of proof is on you, the leaseholder, to show that the landlord has ‘unreasonably withheld consent’. A lack of response or an unreasonable refusal from the landlord will usually mean you can proceed without breaching your lease.
Being unable to contact the landlord is not sufficient however, as the leaseholder in the case of ‘Raja v Aviram’ unfortunately discovered:
Raja v Aviram – a case in point
This recent (February 2016) case concerned a replacement boiler that the leaseholder installed without the necessary consents from the landlord.
The boiler in Mr Aviram’s first floor flat had broken down. He called out a plumber, who advised that the pipework for the replacement boiler would need to run through the external walls, similarly to the existing boiler installation.
Under the terms of the lease, any work that involved cutting the external walls had to have the express consent of the landlord. The leaseholder attempted to find the landlord, Mr Raja but, when he failed to track him down, pressed ahead anyway with the boiler installation.
Mr Raja was alerted to the work when the installation caused some water damage to the ceiling of the flat below. This prompted him to bring a breach of lease claim against Mr Aviram and the case ended up in the First-tier Tribunal (FTT).
The FTT found that there had been no breach, however the landlord appealed and the decision was overturned.
The appeal judge found that the leaseholder had breached the lease, despite the existing cuts in the exterior wall from the old boiler; the difficulties in contacting the landlord; and the fact that the landlord said that he would have consented to the work, had he been asked…
The judge determined that the leaseholder should have made greater efforts to contact the leaseholder and that nothing in the case excused him from installing the new boiler and making the cuts in the external walls, without first securing consent from the landlord.
So how can a leaseholder find a landlord’s contact details?
A good place to look will be on your service charge demand.
Under Section 47(1) of the Landlord and Tenant Act 1987, the name and address of the landlord must be included on every demand, and Section 48(1) also requires that landlords provide an address in England and Wales where they can be contacted for notices and proceedings – such as an application for a licence to alter.
In the Raja v Aviram case there had been no service charge demands and so the landlord hadn’t had to provide a contact address.
In this case, because the freehold interest was registered, the leaseholder should have turned to the Land Registry where, for a few pounds, he could have found the name and address of the landlord.
Where the landlord is a limited company, a search at Companies House will provide you with the details you need.
If neither the Land Registry nor Companies House help, a last resort would be to employ the services of a tracing agent, either directly or through your solicitors.
Our advice on seeking a licence to alter
The case of Raja v Aviram clearly highlights that there is no excuse for carrying out works without seeking the consent of the landlord.
To avoid a breach of lease and a claim of forfeiture, it is essential that you:
- Understand your lease and the covenants within it, and
- Follow the correct procedure for securing the landlord’s permission.
Even if the damage caused by the new boiler had not alerted the landlord to the breach of the lease, Mr Aviram would still have faced problems if and when he tried to sell the flat. Any leasehold buyer will wish to see evidence of a licence to alter where structural works have taken place as, without evidence of the landlord’s consent, there is always the potential for a future breach of lease claim.
For help with applying for a licence to alter, finding your landlord, or any other query relating to leasehold law, please contact the property management experts at Brady Solicitors. Call us on 0115 985 3450 or click here to send us an email.
A legal footnote
Fortunately for the leaseholder in the Raja v Aviram case, the relatively modest nature of the breach (a small hole in the external wall), led the judge to apply some common-sense and suggest that it would be ‘extremely unlikely that this valuable lease will be capable of being forfeited without relief against forfeiture being granted.’ He went on to recommend to both parties that, ‘before, any further time, effort and expense is devoted to this dispute, they consider whether a sensible compromise of their differences is possible.’