Landlord and tenant – Alterations to flat – Landlord granting licence to alter flat by laying of wooden floors with under-floor heating – Appellants in flat below complaining of noise – Whether appellants entitled to enforce covenant in lease requiring floors to be carpeted – Whether landlord waiving obligation to carpet by giving consent for wooden flooring – Appeal dismissed
The appellants and the respondent each held a lease of a flat in the same block. The appellants’ flat was positioned below that of the respondents. The leases were in similar terms and each contained a covenant, made with the landlord “and with and for the benefit of the flat owners”, to observe the regulations set out in a schedule, with the lessors reserving the right to “modify or waive such regulations in their absolute discretion”. The regulations included a requirement “At all times to cover and keep covered with carpet and underlay the floors of the demised premises other than those of the kitchen and bathrooms”.
The previous leaseholder of the respondent’s flat had removed the carpeting and laid wooden flooring, with under-floor heating and approved noise insulation material, as part of extensive alteration works permitted by a licence to alter granted by the landlord. The licence had stated in clause 7.3: “The obligations on the part of the tenant and the conditions contained in the lease which are now applicable to the premises shall continue to be applicable to the same when and as altered as permitted by this licence and shall extend to all additions made to the premises in the course of the tenant’s works”.
The appellants complained of noise from the respondent’s flat, which they claimed was caused by the absence of carpeting. They brought proceedings against the respondent to enforce the obligation to carpet. Dismissing the claim in the court below, the judge held that, by agreeing to the alteration works, the landlord had waived the requirement to carpet the flat since that requirement was inconsistent with permitting the new wooden floor and under-floor heating. The appellants appealed.
Held: The appeal was dismissed.
The relevant clause in the lease would, if effective, require the entire floor surface of the relevant rooms to be covered with carpet and underlay and it would not be possible for the court to order any intermediate solution involving partial carpeting. To require the laying of carpet and underlay across the entire floors of all the rooms that had been equipped with new timber floors would be incompatible with the manifest objective of the previous leaseholder in carrying out the works. Laying wooden floors would be futile and absurd if the whole floor had to be covered by carpet; moreover, it would render the under-floor heating ineffective. By giving its consent to the particular works, the landlord had precluded itself from insisting on carpeting of the floors under that clause once the work had been carried out. The carpeting requirement would frustrate so much of the point of the permitted works that it had to be seen as altogether incompatible with those works. It was not possible to find that the landlord, rather than agreeing never to enforce the obligation to carpet, had agreed that it would do so only where there was good cause, since the possibility of such enforcement would be entirely at odds with the leaseholder having undertaken the particular works and incurred that expense. The general provision in clause 7.3 of the licence to alter, which preserved the terms of the lease in their application to the premises as altered, could not prevail over the specific effect of the agreement by the landlord that the leaseholder could carry out works that were incompatible with the continued enforceability of the obligation to carpet.
Robert Pearce QC and Martyn Barklem (instructed by GH Canfields LLP) appeared for the appellants; Timothy Fancourt QC and Mukhtiar Singh Otwal (instructed by Swinnerton Moore LLP) appeared for the respondent.
Sally Dobson, barrister
