Tag Archives: Residential Flats

Very short term lettings breached “private residence” covenant

A long lease contains a covenant “not to use the leased property (or permit it to be used) for any purpose whatsoever other than as a private residence.”

If the long leaseholder advertises the property (a flat) for short term lets and grants a sequence of such lettings, is the leaseholder in breach of the covenant?

In Nemcova v Fairfield Rents Ltd [2016] the United Kingdom Upper Tribunal (Lands Chamber) said to avoid breaching the covenant, there must be a connection between the occupier and the residence such that the occupier would think of it as his or her residence albeit not for ever. “The occupier for the time being must be using it as his or her private residence.”

If the occupier is in the property for a matter of days (rather than weeks or months or years) that is a material pointer to the fact that the occupier is not using the property as a private residence.

To be used as the occupier’s private residence, there must be a degree of permanence extending beyond “being there for a weekend or a few nights in the week.”

Where a person occupies for a matter of days and then leaves the property it cannot be said that whilst occupying they were using the property as their private residence.

The occupation there would so transient that the occupier would not consider the property they were staying in as being their private residence even for the time being.

Each case is depends on it’s facts, relying upon the interpretation of the particular covenant against it’s factual background.

Based on the context in which this lease was granted, and the nature of the proposed relationship between the long lessor and long lessee and taking account the obligations entered into, the appellant had inevitably breached the private residence covenant by granting very short term lettings (days and weeks rather than months).

The tribunal said it was not possible to give a definitive answer to the question posed at the beginning of this piece save to say that ‘It all depends’.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Landlord Development permitted despite conflict with RTM Company’s Functions

Can a landlord develop an additional flat on an apartment block roof where the management of that roof has been transferred to a “right to manage company” (“RTM Company”)?

In a recent county court case the court found that the proposed development would conflict with the RTM Company’s management functions under Part II, Chapter I of the Commonhold and Leasehold Reform Act 2002 but said that the proposed development was permissible so long as the landlord took all reasonable steps to minimise that disturbance both during and after the development.

The RTM Company has been allowed to appeal to the Court of Appeal.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Offices to flats: Deemed planning consent convertible to have lesser conditions

In the High Court case of Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] the Claimant, applied to the Defendant Council for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in use from an office into three self contained residential flats. The Council granted prior approval for the change of use. That approval amounted to deemed planning consent under Article 3 and Class O of Part 3 of Schedule 2 of Town and Country Planning (General Permitted Development) Order 2015. However that approval was subject to fourteen conditions. Some required the later submission, approval and implementation of schemes to deal with things.

The question raised was whether or not an application under section 73 of the Town and Country Planning Act 1990 may be made for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development where (as here) planning permission was granted not expressly by the local planning authority but granted instead by virtue of a development order made by the Secretary of State.

The court said such an application could be made. Any conditions subject to which prior approval was granted were “conditions subject to which the relevant Class O planning permission was granted.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Flat Landlord not responsible for Tenant fall in Common Parts

Where a lease is a lease of a dwelling-house which forms part only of a building, then, under section 11 (1A) of the Landlord and Tenant Act 1985 there is implied into the tenancy agreement a compulsory contractual covenant by the lessor to keep in repair the structure and exterior of the dwelling-house and the structure and exterior of any part of the building in which the lessor has an estate or interest (including drains, gutters and external pipes).

In Edwards v Kumarasamy [2015] Mr Kumarasamy’s assured shorthold tenant of his Flat 10, Mr Edwards, had tripped on an external paved area forming part of the apartment block’s common parts. Although he did not own them, Mr Kumarasamyh had a legal easement to use the front hall, the car parking space and Bin Store and other facilities provided by the head landlord.

The Court of Appeal found that this gave him an “estate or interest” in the paved area where Mr Edwards sustained his accident.

Was that enough to bring the extended covenant into play?

The Court of Appeal said Mr Kumarasamy’s legal easement over the front hall meant that the front hall was a part of a building in which he had an estate or interest.

In Brown v Liverpool Corporation [1983] the Court of Appeal held that steps leading to the front door of a self contained dwelling were part of the exterior of the dwelling.

In the current case, the paved area which led from the front door of the apartment block to the car park was not part of the exterior of Flat 10. However, the paved area was both short and also part of the essential means of access to the front hall in which Mr Kumarasamy did have an estate or interest because of his easement to use it. So the court ruled that the paved area could properly be described as the exterior of the front hall.

Mr Kumarasamy said Mr Edwards should have given him notice of the uneven paving stone and a reasonable opportunity to fix it but the court said such a qualification could not be implied here because the defect was outside the property actually let to Mr Edwards.

So the extended Landlord’s covenant applied to the paved area and Mr Kumarasamy was liable to Mr Edwards under it for the defect.

The Supreme Court has, in Edwards v Kumarasamy [2016] , overturned the Court of Appeal decision:

“….. that decision was wrong. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. Steps separated from the outside of a building by a two metre path cannot, as a matter of ordinary English, be said to be part of the exterior of that building.”

So it was strictly unnecessary to consider the other issues raised by the appeal.

However the Supreme Court agreed with the Court of Appeal that Mr Kumarasamy had an “estate or interest” in the paved area where Mr Edwards sustained his accident. But said that the repairing covenant implied by section 11 was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant. The rule in relation to such covenants was that, until he has notice of disrepair a landlord should not normally be liable for disrepair of property.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Proportionality assessment did not apply to private possession claim

In the Supreme Court case of McDonald v McDonald and others [2016] Fiona McDonald, was aged 45 and suffered from a personality disorder. In May 2005 her parents bought 25 Broadway Close, Witney (“the property”), with the aid of a mortgage from Capital Home Loans Ltd (“CHL”)

Her respondents granted her a series of assured shorthold tenancies of the property, culminating in one granted in July 2008 for a term of one year. Miss McDonald continued to live at the property.

The parents got into arrears with CHL and do did Miss McDonald’s rent. CHL appointed Receivers of the property. The Receivers subsequently served a notice, in the name of Miss McDonald’s parents, on Miss McDonald indicating they would be re-possessing the property. When that notice expired, they issued possession proceedings in the name of the parents.

Miss McDonald said that the court should have taken into account the proportionality of making an order for possession, for the purposes of Article 8 of the European Convention on Human Rights (“the ECHR), and, that that would have entitled the court to withhold making an order for possession despite being apparently mandated to do so by section 21(4) of the Housing Act 1988 (“the 1988 Act”) and section 89(1) of the Housing Action 1980 (“the 1980 Act”), which restricts how long a court can postpone an order for possession taking effect.

The Supreme Court faced three issues:

1. whether section 6 of the Human Rights Act 1998 (“the HRA”) and article 8 of the ECHR required a court to consider the proportionality of evicting the occupier when entertaining a claim for possession by a private sector owner against a residential occupier;

2. if the answer to 1. was yes, whether the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; and

3. whether, if the answer to 1 and 2 was yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done, on the grounds that the claim for possession was disproportionate.

The Supreme Court said where the party seeking possession is a public authority within the meaning of section 6 of the HRA the occupier can raise the question of the proportionality of making an order for possession. However in the case of Manchester City Council v Pinnock [2011], the Supreme Court made it clear that it’s judgment had no application to cases where the person seeking possession was a private landowner.

The Supreme Court’s preliminary view was that it is unarguable for a tenant to say article 8 overrides the contractual relationship between the parties, at least where the legislative provisions of a democratically elected domestic legislature has balanced the competing interests of private sector landlords and residential tenants. Otherwise, the ECHR would be directly enforceable between private citizens so as to alter their contractual rights and obligations.

As to 2. above, had the court been persuaded that Miss McDonald was right on issue 1., a declaration of incompatibility under section 4 of the HRA would have been the only remedy.

As to 3, the judge had not considered whether, if the claim for possession had been disproportionate, there might have been other solutions to the problem than dismissing the claim.

Where (rarely) a court was required to assess the proportionality of making a possession order, it’s powers to suspend or postpone the effect of that order are much restricted by section 89(1) of the 1980 Act.

Very few cases justified a refusal, as opposed to a postponement, of a possession order and could only be cases where the gravity of the interference in the occupier’s right to respect for their home heavily outweighed the landlord’s interest in regaining possession.

Here, it seemed likely that on a proportionality assessment the most Miss McDonald could hope for would have been an order for possession in six weeks’ time – the maximum permitted by section 89(1) of the 1980 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Inaccessibility of Landlord did not dispense with consent requirement

A tenant’s covenant not to carry out alterations without the landlord’s consent is not a covenant by the landlord to give consent, or to be available to receive requests for consent.

If the landlord cannot be found, so that consent cannot be requested, the tenant may not carry out the alterations without being in breach of covenant.

In relation to residential tenancies, section 47(1) of the Landlord and Tenant Act 1987 (“the 1987 Act”) requires that a landlord’s name and address be included in every demand for rent and other sums payable by a tenant to his or her landlord.

Section 48(1) of the 1987 Act also requires tenants to be supplied with an address in England and Wales at which they may communicate with their landlord, including in connection with proceedings.

Where a landlord fails to comply with either section 47(1) or 48(1), sections 47(2) and 48(2) say any rent, service charges or administration charges otherwise due from the tenant to the landlord are treated as not being due until the particular requirement is complied with.

In the Upper Tribunal (Lands Chamber) case of Raja v Aviram [2016] no rent or service charge was demanded by Mr Raja and he supplied no address to Mr Aviram.

The Tribunal said no statute said that a failure by a landlord to provide a name and address meant that a tenant could carry out alterations or take other prohibited steps without the requirement to obtain the landlord’s consent.

Here, Mr Raja could have obtained the name and address of his landlord by searching the Land Register, which he did at one point.

Even if he did not have that address by the time the works were carried out, there was simply no basis on which he was excused the obligation of seeking consent just because his reasonable efforts to locate his landlord had been unsuccessful.

A breach of covenant had been committed by the creation of at least one new hole in the wall of the building for a replacement boiler without the consent of Mr Raja.

This was still the case even though Mr Raja would have consented when satisfied that the work was to be carried out competently.

A modest breach of covenant had been committed. Given the circumstances of that breach it was extremely unlikely that this valuable lease could be forfeited without relief against forfeiture being granted. Though Mr Raja might have been entitled to nominal damages if he had gone to court.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Right to manage: notice of invitation to participate invalid

The purpose of a notice of invitation to participate under section 78 of the Commonhold and Leasehold Reform Act 2002 is to afford to all qualifying tenants of flats in the premises the opportunity to become members of a right to manage (“RTM”) company. Qualifying tenants are entitle to membership (section 74(1)(a)) and in order to give effect to that entitlement the RTM company is required to inform all qualifying tenants who are not already members of its existence, present membership and intentions.

In the Upper Tribunal (Lands Chamber) case of Triplerose Ltd v Mill House RTM Company [2016] the RTM Company was formed in 2011 and gave notices of invitation to participate to each of the qualifying tenants of the 6 flats on 19 March 2013. The notices of invitation to participate wholly omitted the notes which should have been included as part of the prescribed form.

The Tribunal said that the inclusion of the notes in the prescribed form was essential to the validity of a notice of invitation to participate.

So the documents served on the qualifying tenants, having omitted the notes in their entirety were not notices of invitation to participate in accordance with section 78.

Therefore the RTM company could not under section 79(2) give a claim notice seeking to acquire the right to manage.

So the RTM Company had not acquired a right to manage.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Right to Manage Company Articles could only have been referring to the whole building

Where a document, including a company’s articles of association, is ambiguous or reasonably capable of more than one meaning, the document will be given the meaning which is more consistent with the parties’ presumed intention. Where a document contains a clear mistake, and it is obvious what the parties must have intended, the document will be interpreted so as to accord with that intention.

In the Upper Tribunal (Lands Chamber) case of Avon Ground Rents Ltd v 51 Earls Court Square RTM Company Ltd [2016], the Company’s articles of association were in the model form prescribed by the RTM Companies (Model Articles) Regulations 2009. Article 2 recorded that the Company’s name was “51 Earls Court Square, RTM Company Ltd.”

However in the Company’s articles “the Premises” were defined as “Flat 1-13, 51 Earls Court Square, London SW5 9DG”.

The tribunal said the informed reader, might construe the words “Flat 1-13, 51 Earls Court Square” to mean the 13 flats, numbered 1 to 13, in the building known as 51 Earls Court Square, or alternatively to mean the building at 51 Earls Court Square, which comprised those 13 flats.

But the reasonable person would have to ask themselves “whether the object of the Company could sensibly be the acquisition of the statutory right to manage thirteen individual flats (an object which is legally incapable of fulfilment), or whether the parties must have intended that the right would extend to the whole of the Building [which] comprises the thirteen flats.”

The articles could only be interpreted to mean that the parties intended to refer to the whole of the Building, as it was the only unit of property at 51 Earls Court Square which was “a self-contained building or part of a building, with or without appurtenant property” and thereby qualified to be the subject of an application for the acquisition of the right to manage.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Service charge wording too narrow to cover costs of suing defaulting tenants.

Does the language of a service charge provision in a lease permit the landlord to recover money which it has spent in contesting legal proceedings against the leaseholders of flats in a residential building?

In Arnold v Britton [2015] Lord Neuberger of the Supreme Court said “the court should not “bring within the general words of a service charge clause anything which does not clearly belong there”.

In the Upper Tribunal (Lands Chamber) case of Geyfords Ltd v O’Sullivan & Ors [2015] paragraph 6 of the service charge covered:

“All other expenses (if any) incurred by the Lessors or their managing agents in and about the maintenance and proper and convenient management and running of the Development”.

The tribunal said “management” may sometimes include obtaining professional advice, including legal advice, and in some circumstances it might involve litigation. E.g. the assistance of the court may be required because the leases of flats are unclear, so the outcome of the proceedings is of concern to both the landlord and to every leaseholder.

It could be said “running” suggests a focus on more day to day or mechanical activities, while “management” is more long term or strategic, but it was neither informative or helpful to dissect the language in that way. It might be said as well that both management and running, when used of a building and its immediate environment, are concerned with the condition of the building and activities there, and that the expression taken as a whole is inappropriate to refer to litigation over the liabilities of tenants to their landlord. Such litigation was concerned with enforcing personal rights and obligations rather than with the physical fabric of the building. The qualifying words “proper and convenient”, might also be thought to be words of limitation, suggesting expenditure which is routine rather than exceptional.

Proceedings to enforce the obligation of an individual leaseholder to make a payment to the landlord did not naturally fall within the scope of “management and running”.

The parties to a lease were unlikely to think such general words were enough to show an intention that any money lost by the landlord in litigating against tenants should be recharged to all the tenants in the building. In the Court of Appeal case of Sella House Ltd v Mears [1989] Taylor LJ said he would “”require to see a clause in clear and unambiguous terms” before being persuaded the parties had intended that a tenant who paid his rent and service charges would be obliged to subsidise the landlord’s costs of proceedings against his fellow tenants who were defaulters”.

Accordingly paragraph 6 was less clear than was to be expected if the cost of litigation against defaulting leaseholders had been intended to be recovered as costs and expenses of “proper and convenient management and running of the Development”.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Can a Landlord recoup defence costs and damages from own breaches?

Can a landlord recoup damages and legal costs arising from it’s own breach of covenant through a service charge?

In the Upper Tribunal (Lands Chamber) case of Fairbairn v Etal Court Maintenance Ltd [2015] one of the services the landlord could recharge under the service charge was doing “all other acts and things for the proper management administration and maintenance of the blocks of flats as the Lessor in its sole discretion shall think fit.”

The Tribunal said such a general charging provision was, in principle, wide enough to cover the costs of legal advice or even, where appropriate, of litigation.

However a sum paid to meet a successful damages claim for breach of covenant is not expenditure on the proper management and administration of the buildings.

Also, the legal work here was not so much advice on whether repair work was within the landlord’s covenant. It was rather defending the landlord’s failure of compliance.

In short, the steps required of the landlord resulted from the landlord breaching it’s own obligations under the lease.

The landlord’s repairing covenant required it to maintain the unlet parts of the buildings, including their foundations and structure, in good and substantial repair and condition.

It was precisely because the proper management and administration of the building had been neglected, for however short, that proceedings were commenced by the tenant. So the damages and legal costs were not recoverable through the service charge.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.