Landlord and tenant – Restrictive covenant – Forfeiture – Lease containing covenant against alteration of elevation of building – Original window replaced by door giving access to flat roof – Whether prohibition applicable only to front elevation – Whether replacing window constituting breach of covenant – Appeal allowed
The respondents were lessees of a flat on the first floor of Bridge Court, Lea Bridge Road, London, a substantial block with commercial premises on the ground floor and four floors of flats above. Many of the windows in the building had been replaced by new windows of more modern design and materials. At the rear of the flat, there was an area of flat roof which was not demised with the flat itself. A door had been installed in the flat giving access onto that roof. No other flat in the building have the benefit of such a door.
The lease had been granted by a predecessor of the appellant. Neither the description of the demised premises in the lease nor the rights and privileges granted with it mentioned a right of access to or demise of the flat roof at the rear of the building. The demise did include the doors and door frames and window frames in the walls bounding the flat, except their external surfaces, together with the glass fitted in the window frames.
The lease included a covenant by the lessee not to: “… (i) without the consent in writing of the lessor and the superior lessor cut or maim any of the walls floors timbers stantions or girders of the flat, or (ii) commit or permit any waste or damage … to the flat or make … any alteration in the elevation or in the external decoration thereof or in the means of access thereto” (clause 2(16)).
The appellant applied to the First-tier Tribunal (FTT) under section 168(4) of the Commonhold and Leasehold Reform Act 2002 arguing that the covenant was capable of being broken by the making of alterations at the rear of the flat. After an inspection of the building, the FTT concluded that the installation of the door could not be a breach of clause 2(16)(ii). It was not an alteration to the “elevation” of the flat because “elevation” meant only the front of the building and did not include changes visible only at the rear.
The appellant appealed. The Upper Tribunal directed that the appeal was to be determined as a review of the FTT’s decision followed, if necessary, by a rehearing of the application under section 168.
Held: The appeal was allowed.
(1) The word “elevation” was not a term of art and, unless it was being used in some special or technical sense, could be understood by anyone familiar with ordinary usage. The word had a number of meanings in different contexts. In architecture or surveying it meant a drawing of a building on a vertical plane, as opposed to a ground plan; by extension it meant not simply a drawing of the vertical plane but the vertical plane or exterior of the building itself. Unless it was qualified by reference to a specific plane even when used in the singular it denoted 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: Arnold v Britton [2015] AC 1619 followed. Russell v Watts (1885) 10 App Cas 590 considered.
(2) Clause 2(16) as a whole was unqualified and clearly directed against any activity of the type described. The tenant covenanted not to cut or maim any of the walls floors timbers etc, not to commit or permit any waste or damage or to make any alteration in the elevation or external decoration of the flat. As the covenant was expressed in those unqualified terms, it would be surprising if the parties’ intention had been to apply the prohibition on altering the elevation to only one elevation of the flat. It was also notable that altering the rear elevation of the flat might easily amount to waste or damage or involve an alteration of the external decorations, which in each case would be a separate breach of clause 2(16)(ii). If the intention of the parties was 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 specifically allowing it, rather than by relying on a restricted meaning being given to the word elevation.
(3) The overall purpose of the clause was to ensure that the building was returned to the landlord in substantially the same form in which it was demised, and the FTT’s limited meaning was inconsistent with that purpose. Accordingly, the FTT was wrong to conclude that a change by the replacement of a window at the rear of the building with a door of the same dimensions could not be an alteration to the “elevation” of the building. The matters complained of in the application was capable of being an alteration in breach of clause 2(16)(ii).
(4) The FTT made no determination of the facts. Rather than sending the matter back to it for further consideration, it was more convenient that the tribunal re-hear the original application and determine whether there had been a breach of covenant. There was no reason to think that the flat was originally designed with a door, instead of a window in that location. On the evidence before the tribunal, there had been an alteration in the elevation of the building which occurred after 31 January 1990 when the lease was granted. There was no evidence that the alteration was carried out with the consent of the landlord at the time. Therefore, it was appropriate to make a determination under section 168(4) of the 2002 Act that there had been a breach of covenant by the making of an alteration in the rear elevation of the flat to replace a window with a door.
Justin Bates (instructed by Scott Cohen Solicitors, of Henley-on-Thames) appeared for the appellant. The respondents appeared in person by their representative.
Eileen O’Grady, barrister
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