Leasehold Breaches – Can You Cut It?

This is an appeal from the First-tier Tribunal (Property Chamber) (“the F-tT”) to the Upper Tribunal.  The F-tT were faced with a dispute – Mr Aviram undertook some works to replace a boiler in his flat, but during the course of those works, water escaped from the system and penetrated to the ceiling of the ground floor flat, which lead to a dispute between Mr Raja (the freeholder of the building) and Mr Aviram.

As one would expect, there is a covenant by the lessee to not undertake any works that involve, inter alia, the cutting into of the external walls, without the freeholder’s consent.  It seems in this case that Mr Aviram made no attempt in asking for his freeholder’s consent.

At the F-tT, it was held that the installation of the boiler was not a breach of the consent clause, primarily because the replacement of the boiler was “like-for-like”, and any holes in the walls were pre-existing.  It was also stressed that that conclusion was reached because (i) Mr Aviram’s evidence was that he did not know that any alteration was required and (ii) Mr Aviram made reasonable efforts to find his landlord but without success. It is this conclusion which the Upper Tribunal was asked to consider.

Dealing with the two points of reasoning of the F-tT, the Upper Tribunal says that Mr Aviram is liable for his plumber’s actions and the consequences of any instructions given, and he ought to have known that the installation of the boiler would have lead to the cutting into of the external wall.  The F-tT’s first reasoning for its findings is therefore not justified.

The second reason was Mr Aviram’s attempts at contacting his freeholder.  This was met with short thrift by the Upper Tribunal; there was no evidence that Mr Aviram sought to obtain consent, though such searches were readily available to him.  The Ft-T’s second and final reasoning for its findings is therefore not justified.

There is case law on what a tenant may infer from a landlord not replying, or refusing to reply, to various requests.  These instances are, in most cases, complicated, and carry with them dire consequences if interpreted in the wrong way.  Our property management specialist, Daniel Tetsell, is available to assist with any property management professionals on issues such as consent or general breach of lease matters.  He can be contacted on 01905 730462 or dtetsell@thursfields.co.uk.

Case: RAJA V AVIRAM [2016] UKUT 102 (LC)