A tenant’s covenant not to carry out alterations without the landlord’s consent is not a covenant by the landlord to give consent, or to be available to receive requests for consent.
If the landlord cannot be found, so that consent cannot be requested, the tenant may not carry out the alterations without being in breach of covenant.
In relation to residential tenancies, section 47(1) of the Landlord and Tenant Act 1987 (“the 1987 Act”) requires that a landlord’s name and address be included in every demand for rent and other sums payable by a tenant to his or her landlord.
Section 48(1) of the 1987 Act also requires tenants to be supplied with an address in England and Wales at which they may communicate with their landlord, including in connection with proceedings.
Where a landlord fails to comply with either section 47(1) or 48(1), sections 47(2) and 48(2) say any rent, service charges or administration charges otherwise due from the tenant to the landlord are treated as not being due until the particular requirement is complied with.
In the Upper Tribunal (Lands Chamber) case of Raja v Aviram [2016] no rent or service charge was demanded by Mr Raja and he supplied no address to Mr Aviram.
The Tribunal said no statute said that a failure by a landlord to provide a name and address meant that a tenant could carry out alterations or take other prohibited steps without the requirement to obtain the landlord’s consent.
Here, Mr Raja could have obtained the name and address of his landlord by searching the Land Register, which he did at one point.
Even if he did not have that address by the time the works were carried out, there was simply no basis on which he was excused the obligation of seeking consent just because his reasonable efforts to locate his landlord had been unsuccessful.
A breach of covenant had been committed by the creation of at least one new hole in the wall of the building for a replacement boiler without the consent of Mr Raja.
This was still the case even though Mr Raja would have consented when satisfied that the work was to be carried out competently.
A modest breach of covenant had been committed. Given the circumstances of that breach it was extremely unlikely that this valuable lease could be forfeited without relief against forfeiture being granted. Though Mr Raja might have been entitled to nominal damages if he had gone to court.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.
Original article: Inaccessibility of Landlord did not dispense with consent requirement.