Most leases control what tenants can and cannot do. If they provide that the landlord cannot unreasonably withhold consent and the landlord fails to respond to an application, it may be inferred that the landlord is being unreasonable. In such cases the tenant can proceed without the landlord’s consent. In other cases, the tenant’s lease may state that consent will be deemed to have been given if the landlord fails to respond to an application within a specified period. However, Raja v Aviram [2016] UKUT 102 (LC) illustrates that safeguards like this are of no real assistance if tenants are not in possession of their landlord’s name and address.
The tenant was accused of a breach of covenant because he had had a condensing boiler installed in his flat and the contractors who carried out the work had had to insert a new exhaust vent and waste pipe in a side wall. The landlord agreed that he would have approved the work, had he been approached. But the tenant’s lease included a covenant not to “cut, maim, alter or injure any of the principal timbers, roofs or walls … without the consent in writing of the lessor” and the tenant had cut through the wall without asking the landlord first.
The tenant tried to persuade the tribunal that he was not to blame. The contractors had informed him that they had utilised pipes and cavities that had served the previous boiler and that they had used the same vent. Furthermore, he had attempted to identify his landlord on previous occasions – without success. However, the judge ruled that the tenant had instructed his contractors to install the new boiler and, in the absence of legislative provisions enabling tenants to carry out work without consent if landlords fail to provide their name and address, the tribunal was unable to relieve the tenant from liability for breach of covenant simply because his previous efforts to trace the landlord had been unsuccessful.
Since this was a residential lease, it might have been supposed that the landlord would have had to comply with section 47(1) of the Landlord and Tenant Act 1987, which provides that the landlord’s name and address must be included in all rent demands. In addition, section 48(1) requires that tenants be supplied with an address in England and Wales at which they can communicate with their landlord. Rent, service charges and administration charges payable by the tenant are treated as not being due until these requirements are met. But, in this case, the landlord had not demanded rent or service charges from – and had not supplied his address to – the tenant (and the tenant did not think to ask the Land Registry if the landlord’s interest had been registered with them, as, in fact, it had been).
Fortunately, cases like this are few and far between – and one would expect the court to grant relief against forfeiture in this case, if it becomes necessary to do so. Nonetheless, the decision reminds us that tenants must ask landlords for consent before carrying out work that is prohibited by their leases, failing which they commit a breach of covenant. Furthermore, this will be the case even though the work improves the energy efficiency of the premises and the landlord could not reasonably have refused, had the tenant applied for consent for the work.
Allyson Colby, property law consultant
