Question 1

Wooden Floors Noise

Accepted Answer

Q: Our latest query is regarding use of underfloor high acoustic insulation. As our flats were built in 1970s we are not sure ceramic tiles fitted over this would be practical for other lessees in the block. Do you have any experience or info to help please? Really we want to know of another block with tiles/insulation we could visit? No tiles in situ, new lessees would like to fit them with the high acoustic underlay and we are concerned about noise to other lessees in our blocks built in 1970s? We wonder if any other block of flats has experience of this and can advise if we could talk to residents in another property? FPRA Legal Adviser Nick Roberts replies: I was assuming that you were raising the issue because your leases required the Company as ground landlord to consent to the leaseholder’s proposals. Many leases contain a specific provision that floors must be kept covered with fitted carpets, and so leaseholders who want to adopt the current fashion for wood laminate flooring would be in breach of their leases. Some cause problems by ignoring the restriction: others come up with various plans to mitigate the sound-transmission problem which the ground landlord then feels bound to consider. To my surprise, when I looked at the specimen lease with which I had been provided (the Counterpart lease to Flat 29) I found that there was no such clause there. If there is another version of the lease which does contain a clause relating to carpeting, the advice which I am about to give would need to be revised. The basic position is that a leaseholder can do whatever they like with the property that has been demised (=leased) to them. It is for this reason that most well-drawn residential leases tend to be lengthy documents, and contain a lot restrictions. I have looked through your lease and I cannot see anything in your lease which clearly requires the Company’s consent to what the leaseholder is proposing to do. As I have said, there is no clause which requires that floors be kept carpeted. The only clause which might possibly be relevant is Clause 3(c) on page 5 which requires the leaseholder “Not to make any structural alterations or structural additions to the demised premises....without the previous consent in writing of the Lessors”. On balance, however, I think that this is unlikely to apply as it does not seem to me that one could reasonably describe laying tiles on a floor as a ‘structural alteration’ or a ‘structural addition’. Many leases refer to ‘structural alterations’ and I had though that there might be some useful guidance in decided cases as to what amounts to a structural alteration, but there does not seem to be a lot. Indeed, what there is would suggest that a covenant in a lease against making alterations will not be breached unless the alteration is a structural one, which would mean that putting the adjective in does not add a lot. I would infer from the lease that I have that the floor of each flat is of concrete, and so it is clearly part of the structure. One might therefore try to argue that fixing tiles to it – whether with or without an acoustic underlay – is to make an addition to the structure, but I suspect that a court or tribunal would probably find that it is not what the draftsperson of the lease intended by the words ‘structural addition’. Unless the laying of tiles can be brought within the words ‘structural addition’ then I cannot see any need on the part of the leaseholder to get the Company’s consent. I must admit that, if one does apply this high threshold, I find it difficult to see what would amount to a ‘structural addition’ in the case of a lease of a flat, except in rather unusual circumstances. For the sake of completeness I ought perhaps to mention that, if the proposed work does fall within the terms ‘structural alteration’ or ‘structural addition’ referred to in Clause 5(c), then the clause would not take effect quite as it is worded. Although it says ‘without the consent in writing of the Lessors’, section 19(2) of the Landlord and Tenant Act 1927 would read into the clause the words ‘such consent not to be unreasonably withheld’. This means that it would be possible for a leaseholder who was dissatisfied with a refusal – or by the conditions imposed on any consent – to take the matter to court (not to a tribunal) and get a ruling on this. A ground landlord is, however, entitled to charge for the reasonable costs of dealing with the request, and of giving consent, and this would include the fees charged by a surveyor – or even an acoustic consultant – on the efficacy of what was proposed. But all this arises only if the leaseholder does – contrary to my initial view – require consent because the tiling would amount to a ‘structural alteration’ or ‘structural addition’. I hope that this assists in answering your query. Please let me know if I have misunderstood anything. [Submitted August 2016]

Question 2

Wooden Floors Noise

Accepted Answer

Q: Our latest query is regarding use of underfloor high acoustic insulation. As our flats were built in 1970s we are not sure ceramic tiles fitted over this would be practical for other lessees in the block. Do you have any experience or info to help please? Really we want to know of another block with tiles/insulation we could visit? No tiles in situ, new lessees would like to fit them with the high acoustic underlay and we are concerned about noise to other lessees in our blocks built in 1970s? We wonder if any other block of flats has experience of this and can advise if we could talk to residents in another property? FPRA Legal Adviser Nick Roberts replies: I was assuming that you were raising the issue because your leases required the Company as ground landlord to consent to the leaseholder’s proposals. Many leases contain a specific provision that floors must be kept covered with fitted carpets, and so leaseholders who want to adopt the current fashion for wood laminate flooring would be in breach of their leases. Some cause problems by ignoring the restriction: others come up with various plans to mitigate the sound-transmission problem which the ground landlord then feels bound to consider. To my surprise, when I looked at the specimen lease with which I had been provided (the Counterpart lease to Flat 29) I found that there was no such clause there. If there is another version of the lease which does contain a clause relating to carpeting, the advice which I am about to give would need to be revised. The basic position is that a leaseholder can do whatever they like with the property that has been demised (=leased) to them. It is for this reason that most well-drawn residential leases tend to be lengthy documents, and contain a lot restrictions. I have looked through your lease and I cannot see anything in your lease which clearly requires the Company’s consent to what the leaseholder is proposing to do. As I have said, there is no clause which requires that floors be kept carpeted. The only clause which might possibly be relevant is Clause 3(c) on page 5 which requires the leaseholder “Not to make any structural alterations or structural additions to the demised premises....without the previous consent in writing of the Lessors”. On balance, however, I think that this is unlikely to apply as it does not seem to me that one could reasonably describe laying tiles on a floor as a ‘structural alteration’ or a ‘structural addition’. Many leases refer to ‘structural alterations’ and I had though that there might be some useful guidance in decided cases as to what amounts to a structural alteration, but there does not seem to be a lot. Indeed, what there is would suggest that a covenant in a lease against making alterations will not be breached unless the alteration is a structural one, which would mean that putting the adjective in does not add a lot. I would infer from the lease that I have that the floor of each flat is of concrete, and so it is clearly part of the structure. One might therefore try to argue that fixing tiles to it – whether with or without an acoustic underlay – is to make an addition to the structure, but I suspect that a court or tribunal would probably find that it is not what the draftsperson of the lease intended by the words ‘structural addition’. Unless the laying of tiles can be brought within the words ‘structural addition’ then I cannot see any need on the part of the leaseholder to get the Company’s consent. I must admit that, if one does apply this high threshold, I find it difficult to see what would amount to a ‘structural addition’ in the case of a lease of a flat, except in rather unusual circumstances. For the sake of completeness I ought perhaps to mention that, if the proposed work does fall within the terms ‘structural alteration’ or ‘structural addition’ referred to in Clause 5(c), then the clause would not take effect quite as it is worded. Although it says ‘without the consent in writing of the Lessors’, section 19(2) of the Landlord and Tenant Act 1927 would read into the clause the words ‘such consent not to be unreasonably withheld’. This means that it would be possible for a leaseholder who was dissatisfied with a refusal – or by the conditions imposed on any consent – to take the matter to court (not to a tribunal) and get a ruling on this. A ground landlord is, however, entitled to charge for the reasonable costs of dealing with the request, and of giving consent, and this would include the fees charged by a surveyor – or even an acoustic consultant – on the efficacy of what was proposed. But all this arises only if the leaseholder does – contrary to my initial view – require consent because the tiling would amount to a ‘structural alteration’ or ‘structural addition’. I hope that this assists in answering your query. Please let me know if I have misunderstood anything. [Submitted August 2016]

Wooden Floors Noise

Search

Articles Archive