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What is an ‘elevation’ in property terms?

14th February 2019 by Rob Kelly

Categories: What's New?
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Does a covenant against making “any alteration in the elevation” of a flat refer to only the front elevation, or to all aspects of the external appearance of the building?

This was the question before the Upper Tribunal (Lands Chamber) when construing the terms of a covenant in a 99-year lease that prohibited making any alterations to the elevation of the property.

The First-tier Tribunal had held that the installation by a tenant of a door in the rear wall of the building giving access to an area of flat roof which was not transferred with the flat could not be a breach of the covenant because it was not an alteration to the “elevation” of the flat: the “elevation” could only mean the front of the building.

The First-tier Tribunal, relying on a 100-year-old court decision, held that ordinarily “elevation” meant the front view of a building as opposed to a horizontal plane so there had been no breach of the covenant.  However, in overturning that decision the Upper Tribunal held that it is not necessary to refer to the observations of an Edwardian judge to identify the natural and ordinary meaning of the word “elevation”, which denotes the external vertical surfaces of a building generally, rather than referring only to the front of the building.

The Upper Tribunal made a determination under section 168(4) of the Commonhold and Leasehold Reform Act 2002 that it was a breach of the covenant against making alterations for the tenant to replace a window with a door in the rear elevation.

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

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 755217

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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

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.

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