What was the effect of a covenant that required a tenant not to “make or permit to be made any alteration in the elevation” of a flat? Was it a breach of covenant to remove a rear window from the flat and replace it with a door, of exactly the same dimensions, providing access on to a flat roof that was not part of the demise? Or was the covenant concerned only with changes to the front facade of the building?
The tribunal’s jurisdiction to determine whether there has been a breach of a covenant in a lease derives from section 168(4) of the Commonhold and Leasehold Reform Act 2002. And, in Triplerose Ltd v Patel [2018] UKUT 374 (LC), the First Tier Tribunal took the view that there was not a breach. Applying Joseph v London County Council (1914) 111 LT 276, it ruled that the word “elevation” meant only the front of the building and did not include changes visible only at the rear. But was this right?
The Upper Tribunal has overturned the decision. It ruled that the word “elevation” is not a term of art and bears different meanings in different contexts. In architecture or surveying, it means a drawing of a building on a vertical plane, as opposed to a ground plan. By extension, it means not simply a drawing of the vertical plane but the vertical plane or exterior of the building itself. And, unless it is qualified by a reference to a specific plane, even when used in the singular it denotes the external vertical surfaces of a building generally – the front, the back and the sides – rather than referring only to the front of the building.
The First Tier Tribunal had read too much into the decision in Joseph. And, in Russell v Watts (1885) 10 App Cas 590, the House of Lords had refused to construe the word “elevation”, used in the phrase “height or elevation”, as relating only to the street fronts of buildings.
The Upper Tribunal explained that the overall purpose of a prohibition against alterations is to ensure that a building is returned to the landlord in substantially the same form in which it was demised. And the limited meaning that the First Tier Tribunal had ascribed to the word “elevation” was inconsistent with that purpose. If the parties had intended to limit the prohibition on alterations to the front elevation only, the more natural way to convey that intention would have been by some exemption or proviso, rather than by relying on a restricted meaning being given to the word “elevation”.
The Upper Tribunal was satisfied that the rear elevation had been altered some years previously and there was no evidence to show that the alteration had been approved by the landlord at the time. Consequently, there had been a breach of the covenant in the tenant’s lease.
Allyson Colby, property law consultant
