201902.18

Obtaining landlord consent for alterations should be “through the roof”!

The majority of leases will stipulate that you require your landlord’s permission or consent before carrying out any alterations to your property. This could include minor work like fitting a wooden floor or installing windows to making major structural alterations. However, if the relevant consent is not obtained, usually through applying for a Licence to Alter (a formal written document from your landlord) then you will most likely be in breach of your lease, which may expose you to the unfortunate and very unwelcome consequence of your lease being forfeited.

Case in point

In the case of Raja v Aviram (2016), the boiler at Mr Aviram’s first floor flat had broken down which he proceeded to fix. In doing so, the plumber had to cut through some external walls. Whilst Mr Aviram had tried to alert the landlord, Mr Raja, about such works, the landlord was not contactable and so Mr Aviram continued with the said course of action.

Unfortunately, the boiler installation led to some water damage to the ceiling of the flat below Mr Aviram’s flat which prompted Mr Raja to bring a claim against Mr Aviram for breach of lease. The First-tier Tribunal held that there had been no breach. However, on appeal by Mr Raja, this decision was overturned.

The appeal judge found that Mr Aviram should have made greater efforts to contact the landlord and that nothing excused him from installing the new boiler and making the cuts in the external walls, without first securing consent from Mr Raja. This was despite Mr Raja being difficult to get hold of and admitting that he would have consented to the alterations had he been asked. In other words, a breach is a breach is a breach is a breach!

What can you do if you can’t get hold of your landlord?

A starting point is to check your service charge demands as under section 47 (1) of the Landlord and Tenant Act 1987 (“the Act”), your landlords details should be on there (name and address). Further, section 48 (1) of the Act requires all landlords to 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.

If you still cannot locate your landlord, then another useful place would be to check with the Land Registry or with Companies House if the landlord is a limited company.

Other consequences for not obtaining Consent

If the appropriate consent is not obtained and alterations are still carried out, a landlord could be entitled to obtain an injunction against you which could be accompanied with a damages claim.

As mentioned above, the landlord could be entitled to forfeit the lease. If so, this could also lead to action being taken by your mortgage company.

By not obtaining consent, you may be jeopardising your position when you go on to sell your property in the future as your purchaser will be entitled to ask for any consents and permissions obtained.  If these have not been obtained, you may end up reducing the sale price of the property in order to keep the prospective purchaser on board.

Sometimes, landlords use the breach as a bargaining tool. For example, if you have unlawfully (i.e. without consent) extended into the attic area of a building which does not belong to you, the landlord may offer to sell you the attic area at a specific price or threaten to take enforcement action against you.  Leaseholders would often rather make a deal with their landlord than face costly litigation.

Any defences

If you have taken the appropriate steps to seek consent but the landlord still refuses to grant this to you, then you may be able to proceed with carrying out the alterations anyway, as most leases do state that consent is not to be unreasonably withheld. However, we would always advise that you err on the side of caution and seek legal advice before taking any such steps.

You should also know that landlords cannot request a premium for giving you consent as again this is likely to be deemed as a landlord unreasonably withholding consent.

Unfortunately, the definition of ‘unreasonably withholding consent’ has not been defined in law so it will vary from case to case.

Please feel free to speak to Priya Sejpal, our resident Property Litigation expert, about this matter. Priya can be contacted by her email address priya.sejpal@curwens.co.uk