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Triplerose Limited v Patel [2018] UKUT 374 (LC)

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30th January 2019

Summary

A covenant against alterations to the ‘elevation’ of a building can be broken where alterations are made to the rear, as well as the front, of the building.

Facts

The appellant landlord applied under section 168(4) of the Commonhold and Leasehold Reform Act 2002 (‘CLRA02’) for a determination that the respondent tenants, or their predecessors, had breached a covenant of their lease. A window at the rear of the first-floor flat had been replaced with a doorway allowing access onto the roof of a ground-floor premises in the building.

Issues

1) Can a covenant against making “any alteration in the elevation of a flat” be broken by the making of alterations at the rear of that flat;

2) If so was there a breach of such covenant on the facts of this case.

First Instance

The tenants contended that the clause in their lease only prohibited alterations made to the ‘elevation’ of the building, and that ‘elevation’ referred only to the front façade of a building. An alteration made to the rear of the building could not therefore be a breach of this clause.

The Tribunal considered the authority Joseph v London County Council (1914) 111 LT 276. Astbury J in that case was reported as saying that “ordinarily ‘elevation’ meant the front view of a building as distinct from the horizontal plan.” There was nothing in the lease in question advising against the construction of the word ‘elevation’ as given by Astbury J, and indeed there was logic to concluding that only the front of a property was referred to by that term, as a landlord would be more concerned by the appearance of the front of a building than the back.

Decision [on appeal]

The appeal to the Upper Tribunal proceeded by way of a rehearing.

The FTT had read too much into the decision in Joseph, where only alterations at the front of a building had been in issue. That case laid down no rule of law and did not assist in the present matter. The UT found that the overall purpose of the clause was to ensure that the building was returned to the landlord in substantially the same form demised, in which case the appearance of the rear of the building would be a concern.

On re-hearing the case, the Deputy Chamber President was satisfied that there had been an alteration to the flat occurring after the lease was granted, and without the consent of the landlord. The Tribunal accordingly made a finding that there had been of breach of covenant for the purposes of section 168(4) CLRA02.

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