Noise complaints and flooring-related disputes remain a common issue in blocks of flats, particularly where older leases contain covenants requiring carpets and underlay. As time passes and flooring technology evolves, these provisions can become open to differing interpretations and disagreements can quickly escalate.
A recent case, Calnan v Stack House Residents (Oxted) Ltd, provides timely guidance for freeholders, managing agents and leaseholders on how these traditional covenants should be understood and enforced.
Background to the dispute
The property at the centre of the case is a 1970s block of flats in Oxted. The lease included a familiar covenant requiring the leaseholder to “furnish all floors of the premises with sufficient underfelt and carpets… to minimise the induction of sound” to neighbouring flats.
Following refurbishment works, an inspection revealed that the leaseholder had removed a partition wall, installed vinyl flooring over an acoustic barrier product called SoundMat, and laid carpet in some areas without underlay. The hallway and dining area were left with hard flooring.
The freeholder’s managing agent applied to the First-tier Tribunal (FTT) for a determination that the leaseholder was in breach of the flooring covenant, which marked the beginning of the formal dispute.
The First-tier Tribunal decision
At the FTT hearing, the core question was whether the flooring arrangements complied with the lease covenant as drafted in the mid-1970s. Could modern acoustic materials satisfy the requirement for “carpet and under-felt”, or was a traditional combination still required?
The FTT ruled that the leaseholder was in breach. It found that the hard flooring and vinyl-over-SoundMat system did not satisfy the covenant, and that the absence of underlay beneath carpeted areas further supported the breach. However, its written decision simply stated that the leaseholder “is in breach”, without specifying detail on which elements did and did not contribute towards the breach, with this lack of precision later becoming significant.
The appeal to the Upper Tribunal
The leaseholder appealed, and the matter proceeded to the Upper Tribunal (UT), which carried out a more detailed analysis of the covenant and its purpose.
What does the covenant actually require?
The UT confirmed that “carpet” should carry its ordinary meaning at the time the lease was granted, and that vinyl flooring, even when laid over a high-performance acoustic barrier, cannot be treated as carpet. Similarly, “underfelt” referred to a layer beneath carpet designed to reduce sound transmission.
However, the Tribunal acknowledged that modern materials may achieve the covenant’s purpose of minimising noise transfer. Compliance is therefore assessed by outcome, not by strict adherence to outdated methods.
Was the leaseholder in breach?
The UT revisited the timeline and found that a breach had occurred between April 2022 (when the works were inspected) and August 2023, when the leaseholder re-laid carpet across the affected areas.
Crucially, although this new carpet was installed without underlay, the freeholder had not provided evidence that noise reduction was still insufficient. Without that evidence, the UT could not find an ongoing breach after August 2023.
This is a key reminder for freeholders and managing agents: where a covenant is purpose-based, the burden of evidence lies with the party alleging the breach. The absence of underlay alone may not be enough.
The importance of precision in Section 168 determinations
The UT also addressed an important procedural issue. For the purpose of any future enforcement action — particularly service of a Section 146 notice — a tribunal determination must clearly define:
- the nature of the breach, and
- the period during which it occurred.
The FTT’s original wording (“is in breach”) was held to be too vague. The UT amended the determination to specify the exact period of breach, ensuring it could be relied upon for any future action under Section 168 of the Commonhold and Leasehold Reform Act 2002.
This clarification is essential for managing agents and freeholders considering enforcement: imprecise determinations leave future action vulnerable to challenge.
What does this case mean for freeholders, managing agents and leaseholders?
This decision reinforces several practical points:
- Flooring covenants will continue to be interpreted with their underlying purpose in mind — minimising noise transfer — even where leases use outdated terminology.
- Managing agents and freeholders should ensure that inspections are well documented and, where noise attenuation is the core issue, be prepared to obtain acoustic evidence.
- Leaseholders planning refurbishment involving hard flooring or modern acoustic systems should seek early advice and, where required, consent. This can avoid costly disputes and tribunal proceedings.
How Brady Solicitors can help
Brady Solicitors regularly advises freeholders, managing agents and leaseholders on the interpretation, enforcement and practical management of lease covenants. Whether you are considering enforcement action, dealing with a noise-related complaint, or planning internal alterations, our specialist leasehold team can provide clear, pragmatic guidance.
