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block of flats

Problems with Leasehold Covenants

14th February 2019 by Rob Kelly

Categories: What's New?
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Is the landlord of a block of flats entitled to grant a licence to a tenant to carry out work which would breach an absolute covenant contained in a lease of the tenant’s flat, where the leases of other flats require the landlord to enforce the covenants at the request of a tenant of one of those other flats?

This important question was recently answered by the Court of Appeal.

11-13 Randolph Crescent in Maida Vale was originally two houses but they had been converted into nine flats each of which was held under a long lease.  The reversion was owned by 11-13 Randolph Crescent Ltd, a company owned by the flat owners themselves.

In 2015, Mrs Winfield approached the landlord asking for permission to carry out improvement works to her flat, Flat 13.  The landlord was willing to grant consent but the owner of two adjoining flats claimed that the terms of the lease prevented the company from doing so because it contained two clauses which prohibited (i) tenants from making alterations or improvements and (ii) the tenants from cutting, maiming or injuring any wall within or enclosing their flat.  The second covenant is what is usually called an “absolute” covenant.  An absolute covenant against alterations is one which prevents the tenant from making any changes to the property.

Mrs Winfield’s wishes included the removal of about seven metres of a load-bearing wall at basement level and extending her flat beyond its current limits which, it was accepted, would have amounted to a breach of the absolute covenant.

The judge at first instance held that the landlord was entitled to permit the breach.  However, in overturning that decision the Court of Appeal held that if the landlord could grant a licence to do something which would otherwise be a breach of the lease, he commits a breach.  The court granted a declaration to the effect that the waiver by the landlord of a breach of covenant by a lessee or the grant of a licence to commit what would otherwise be a breach of covenant would amount to a breach of the lease.  To hold otherwise would defeat the purpose of the covenant.

If you would like further information about this article please contact Rob Kelly.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871


Rob Kelly
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Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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