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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.