Claimant seeking to replace windows and external doors of property – Claimant seeking declaration that replacement not amounting to breach of covenant – Whether claimant making structural alteration – Claim allowed
In 1998 the claimant purchased a 999-year lease of the penthouse apartment at the Conning Tower development. The first defendant (High Cliff) was the freeholder of Conning Tower, which was managed and administered by the second defendant, Conning Tower Management Co Ltd. By schedule 3 para 9.1 of the lease, the claimant covenanted, inter alia, “Not to make any structural alterations to the property”. Following the grant of the lease, defects with the windows and external doors of the apartment became evident. It was accepted by all parties that those defects could only be remedied effectively by the total replacement of the doors and windows. The claimant sought to replace the steel windows and doors with aluminium windows and sought a declaration that installation of such windows did not breach the covenant in his lease. High Cliff contended that meaning had to be given to the words “structural alterations to the property”, and the clear reference was to its windows and doors. It went on to submit that the particular type of window that the claimant wished to install was materially different, both structurally and in appearance, from the existing windows, and therefore amounted to breach of covenant.
Held: The claim was allowed.
The installation of aluminium windows by the claimant did not amount to a structural alteration in the context of the lease. In the part of the lease that addressed the definition of main structure, the draftsman had provided a clear picture of the matters that he had in mind in using the word “structural”. These matters did not include windows and external doors. The word “structural” in para 9.1, was not to be given a radically different meaning from the one it had in other parts of the lease. There was nothing in the context of para 9.1 that required “structural alterations” to extend to windows and external doors: Pearlman v Keepers and Governors of Harrow School [1978] 2 EGLR 61 and Irvine v Moran [1991] 1 EGLR 261 considered.
Christopher Balogh (instructed by Turners, of Bournemouth) appeared for the claimant; Andrew PD Walker (instructed by Pinsent Curtis, of Leeds) appeared for the defendants.
Sarah Addenbrooke, barrister
