Question 1

Lack of Consultation

Accepted Answer

Q: We have an established and RTM Co and we are in charge of all the maintenance of the building. Several months ago the freeholder, who still owns 4 out of 12 flats in our small mansion block, started on a complete refurbishment of one of his flats. We were invited (NB only after all the internal planning/re-modelling decisions had been made) to ask various questions of the architect in charge, however outstanding problems still remain which we feel the freeholder is deliberately choosing to ignore, despite repeated and polite requests to resolve matters. These partly concern small amounts of damage and creation of a lot of dirt in communal areas of the building, for example: 1) damage to paintwork of an expensively and recently and very expensively redecorated outside staircase 2) damage to internal fixtures and decoration 3) thick layers of builders' dust in an internal hallway. 4) possible damage to drains We have also examined our leases and are concerned that there has been a violation caused by reconfigurations of rooms: this means that where the original layouts of all 12 flats had placed bedrooms beside bedrooms and living accommodation alongside other living accommodation, this refurbished flat has now reversed everything. NB this had already happened in another flat in the block owned by the freeholder. We complained when that was done and yet again he chose to ignore us. NB In our leases it says: "no one may “do anything which would adversely affect the support, repair, maintenance, cleanliness or enjoyment of the (other) flats in the building”. Also “Not do or suffer to be done in or upon the flat or the said premises or any part thereof any act or thing which shall or may be or become a nuisance damage annoyance or inconvenience to the Lessor or their tenants or the occupiers of any of the adjoining houses in the neighbourhood.” We have very politely asked approximately four times now in recent weeks for a response to what we think is a violation of our leases, quoting these clauses and again the freeholder refuses to respond. Our only permitted conduit of contact is with an office manager, with no authority of her own and who is clearly completely under the thumb of the freeholder. Just over a week ago we were granted a meeting with the manager of the building company who carried out the refurbishments and after 15 minutes he became so hostile and defensive (after the mildest of questions) that we were forced to bring it to a close. What can we do in the face of such obstinacy? Is there for example anywhere we can go for arbitration? FPRA Hon Consultatnt Roger Hardwick replies: In respect of any flat which is subject to a lease: 1. Clause 2(11) contains a covenant on the part of the Lessee “Not at any time during the said term without the licence in writing of the Lessor first obtained to make alterations to the plan or elevation of the flat or in any of the party walls or the principal or bearing walls or fences or timbers thereof nor construct any gateway or opening in any of the fences bounding the Building nor shall the Lessee do or fail to do any act deed of thing which would adversely affect the support repair maintenance cleanliness or enjoyment of the flats in the Building”. 2. The prior written consent of the Lessor and also the RTM company is required wherever there is a proposal to change the “plan ... of the flat”. 3. When it acquired the right to manage the premises, the RTM company also acquired certain functions relating to approvals. Those functions are set out in ss.98 – 99 of the Commonhold and Leasehold Reform Act 2002. The correct process is as follows:

a. The lessee must write to the RTM company, and seek the RTM company’s consent to carry out the specified alterations (assuming the alterations require prior written consent – minor alterations which do not affect the walls, plan, elevation etc. of the flat will not require consent)

b. The RTM company has a reasonable period of time to send the application to the Lessor

c. The Lessor may respond within 30 days (it is sometimes 14, but in the case of alterations it is always 30 days), either consenting or objecting to the proposals (or seeking to impose conditions)

d. Once the RTM company has received a response from the Lessor, or 30 days has elapsed, it has a reasonable period of time to consider its position, and then inform the lessee whether the RTM company consents or objects to the proposal (or seeks to impose conditions)

e. The lease does not expressly say that consent may not be unreasonably withheld. If the alterations amount to an improvement, however, it will be implied (s.19, Landlord and Tenant Act 1927). That will be a question of fact and degree.

f. If any lessee carries out alterations (for which consent is required) without obtaining the RTM company’s consent, it will be in breach of covenant. The RTM company may apply to Court for an order seeking damages, or an injunction compelling the lessee to reinstate the flat (although that is at the Court’s discretion, and will depend on the severity of the breach, the sufficiency of other remedies, among other things).

4. It is not clear whether the covenant on the part of the Lessee to permit access to the Lessor (e.g. to inspect the condition of the flat, or carry out work to other parts of the building) would extend to the RTM company, but I expect the right of access would amount to a “management function”, which is exercisable by the RTM company. 5. Each lessee also covenants not to do anything which “shall or may cause a nuisance, damage or annoyance” (Clause 2(13) as your member points out). The actions complained of would appear to have caused “damage”. Whether they amount to a “nuisance” or “annoyance” is rather subjective, and subject to evidence, but they seem to me to constitute matters which might be considered a “nuisance” or “annoyance” provided they are not de minimis. 6. It is also likely that the Lessor should not do anything which unreasonably interferes with the exercise of the RTM company’s statutory functions (Francia v Aristou – although that is only a County Court decision, which settled before it reached the Court of Appeal). However, none of the above (with the possible exception of 6) applies in respect of any flat is not subject to a lease, because the freeholder is not a lessee, and there are no lessee covenants in relation to that flat. I have obtained a copy of the freehold title and see that none of the freeholders flats are subject to leases. Unlike in most modern leases, the flat leases do not contain a covenant on the part of the Lessor to comply with similar obligations to those on the part of the lessees, in respect of any undemised flat; nor do they contain a covenant to ensure that all of the leases are in a similar form. You can still recover service charges from the Lessor, by virtue of s.103 of the 2002 Act, but that will not assist you here. As this is clearly an unsatisfactory arrangement, I would seriously consider applying to the FTT to vary the flat leases in the building to insert a covenant on the part of the Lessor to comply with covenants similar to those set out in Clause 2 of the flat leases (save for the covenant to pay a rent), in the event of any flat not being subject to a long lease. The application would probably have to be made, by all of the owners of those flats which are subject to leases (i.e. the other 8 flats in the building), under s.37 of the Landlord and Tenant Act 1987. Otherwise, I am afraid the Lessor can do what it wishes within its own flats, provided its actions do not amount to a breach of its covenant for quiet enjoyment (i.e. its obligation not to unreasonably interfere with the use and enjoyment of any flat). If the Lessor’s actions result in additional work having to be carried out, which the lessees have to pay for, my instinct is that the lessees should be able to claim that back from the lessor, although I have not been able to think of the cause of action!

Question 2

Lack of Consultation

Accepted Answer