What happens if a neighbouring flat wishes to flout the terms of a lease

Posted on 16th July 2020

Residential leases often contain clauses which require tenants not to do something to their property. Such restrictions may include not altering the property, not subletting or keeping carpets on the floor. These restrictions are known as covenants and can sometimes be deemed to be absolute i.e. there is no caveat in the clause which allows for a reasonable request to be considered by the landlord. Without the landlord’s confirmation that these clauses have been relaxed, a tenant would need to strictly obey an absolute covenant. If a covenant is relaxed, then this may be recorded in the form of a licence.

Furthermore, some leases contain clauses that allow tenants to request that the terms of the leases in their neighbours’ leases are enforced by the landlord. This can prevent a tenant who is suffering from the impact of a neighbour’s alterations with a chance to involve their landlord and request that the terms of their neighbour’s lease be enforced.

Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18

As mentioned above, some landlords may elect to relax absolute covenants. This occurred in the case of Duval. The relevant clause stated that the tenant was not permitted to cut or maim the roof, wall and ceiling of the property. This was an absolute covenant. A neighbour of Duval, wished to remove a wall in the basement of her flat and in order to avoid being in breach of her lease, asked the landlord for a licence affording her the opportunity to do the works without being in breach of the absolute covenant. Duval sought a declaration that granting such a licence to the neighbour would breach the clause that required the landlord to enforce terms in neighbours’ leases. The Supreme Court found in favour of Duval.

Considerations

This case illustrates the problems that landlords may have to consider when relaxing absolute covenants. If a landlord receives a request from a tenant to alter their property, then the landlord may want to take into account whether the alterations will impact other tenants. For example, another tenant may suffer damage to their property as a result of the works. For tenants who are concerned about their neighbours’ alterations, then this presents an opportunity to inform their landlords of their rights owed to them, when an absolute covenant is relaxed. Landlords may need to make an assessment of whether granting a licence to a tenant to do building works to their property will have an adverse impact on other tenants in the building.

If you are unsure about your residential lease and in need of legal advice from our Property Disputes experts, please call 0808 231 6369 or request a call back online.

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