License to Alter required to carry out repairs?

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    License to Alter required to carry out repairs?

    Hi all,

    Looking for some advice. My wife and I recently bought a leasehold property in London. The property came with wooden flooring, and the lease specified no wooden flooring could be installed without consent.

    The lease states, with regards to the flooring issue:
    "Not at an time during the Term to make any structural alterations in or additions to the Demised Premises or to cut maim alter or injure any of the structural walls or timers thereof or to alter the external appearance or to alter the Landlord's fixtures thereof or to install any non-carpet like floor made of timber or any other similar, hard or wooden material without first having made a written application (accompanied by all the relevant plans and specifications) in respect thereof to the Landlord and received written consent of the Landlord thereto (such consent not to be unreasonably withheld or delayed).

    The wooden flooring was installed by the freeholder and now landlord prior to our purchase, so my wife and I sought an indemnity for the installation. The indemnity states:
    as part of the arrangements for completion of the Lease, we [the freeholder and landlord] confirm and agree as follows;
    1. That we as your Landlord will not take any action against you in relation to the existing flooring within the Property; and
    2. We will not request that you replace this flooring and confirm that it may remain in situ at the Property and that it is not a breach of the Lease.
    Notwithstanding the points made above, we also confirm that this matter does not amount to consent to any proposal you may make for the removal or replacement of the existing flooring (other than with carpet and suitable underlay). If you choose to remove the existing flooring and replace it with new flooring (other than carpet and suitable underlay) then an application for a License for Alterations will need to be made. As part of this, you will need to instruct solicitors, undertake to pay our legal fees and those of our Managing Agent, to follow the Managing Agent's guidance notes as they exist from time to time and to obtain suitable acoustic reports, provided that if there are complaints from other residents stemming from the existing flooring, we will cover the cost of the License for Alteration referred to above.


    The issue we have is that, we want to repair the flooring as there are a number of areas where there is damage and gapping. Ideally we would like some advice as to whether a LTA is required if we are carrying out repair work? In this instance, the only logical way to repair the damage is to replace the flooring as we cannot source the same flooring.


    Any advice is very much appreciated.

    #2
    Did you sign the indemnity?

    Comment


      #3
      Originally posted by Lawcruncher View Post
      Did you sign the indemnity?
      Yes we signed the indemnity.

      Comment


        #4
        Your lease should state what is included in your demise, therefore responsible to maintain / fix .
        It usually states, you are demised
        the floor boards, internal plaster over the bricks, and either half the floor joists, and half the ceiling joists. If it does not include mention of the joists, - not your property to replace.

        Tell us what the lease says.But it sounds as though you have not been demised the floor boards, in which case the freeholder is correct -
        I assume you do not have carpets fitted over the floor boards. ? Please answer.

        It would seem that the freeholder owns the flooring, as they fitted the flooring, and not the leaseholder. ( but read your lease )
        If you do not have the floorboards "demised" to you, it is up to the freeholder to rectify.
        If the floorboards Are demised to you, just replace them.




        Comment


          #5
          It doesn't sound to me that this is an issue with what is/isn't demised.
          It sounds like the floor covering is within the demise, but the floor covering present at the time of purchase was one that the lease does not allow without the freeholder's consent.

          The indemnity that was signed gave permission for the wooden flooring to be kept after the sale, but the way that it is worded does not seem to allow the like-for-like replacement that the OP is proposing without first getting consent from the freeholder.
          In fact, the wording in the indemnity seems to expressly prohibit replacement with new wooden flooring.
          I would think that repair wouldn't be an issue, if it was repair of only sections of the flooring, but not replacement of the flooring - unless you replace it with carpet and underlay.

          Comment


            #6
            Originally posted by Macromia View Post
            The indemnity that was signed gave permission for the wooden flooring to be kept after the sale, but the way that it is worded does not seem to allow the like-for-like replacement that the OP is proposing without first getting consent from the freeholder.
            In fact, the wording in the indemnity seems to expressly prohibit replacement with new wooden flooring.
            I would think that repair wouldn't be an issue, if it was repair of only sections of the flooring, but not replacement of the flooring - unless you replace it with carpet and underlay.
            I was thinking rather on the same lines which is why I asked the OP if he and his wife had signed the indemnity, hoping they had not so I did not have to consider the effect of the document. I have now considered it and concluded that it probably does not override the lease. However, there is still a bit of a conundrum. You do not need consent to carry out a repair you are under an obligation to carry out. "Repair" includes replacement where necessary. The problem here is that the replacement is for something which ought not to be there if you read the indemnity. However, it was the landlord who apparently put the floor down. If the landlord himself put the floor down the indemnity ought to have been worded somewhat differently. Before commenting further I think I would like to have a bit more background to explain exactly what happened.

            Comment


              #7
              Hi all,

              Thanks for your feedback and advice thus far. As far as background goes, please let me know if you need anything clarifying. The freeholder and landlord are the same person.

              Before we bought the flat, the freeholder had rented it out, and it was vacant for at least 2 years prior to us completing. The wooden floor has been there for some time, based on the general wear and tear as well as damage to the flooring (i.e. 10mm+ gaps between the boards throughout the property, damaged boards). During the sales process it became evident that although the freeholder owned the property, they had not sought an LTA to install the wooden floor, which would have mean upon us completing we would have been in breach of the lease, which does not allow for wooden flooring without an LTA.

              The indemnity was sought to protect my wife and I from being in immediate breach of the lease upon completion. Prior to all this, the freeholder's solicitor was trying to get us to get an LTA for the existing flooring, essentially making us retrospectively pay for the consent the freeholder should have sought when they installed the floor.

              I agree with you Lawcruncher, that in some circumstances, 'repair' does amount to replacement where necessary. My argument for replacement is simply, it is impossible for my wife and I to spot replace parts of the flooring as this would mean taking up a large amount of the flooring, and, it is almost impossible to find like for like flooring.

              I did speak to the Leasholder Advisory Service who also advised that a repair/replacement should not trigger a LTA where are replacing like for like. My wife and I are also very conscious of this, and are looking to replace the top layer of the flooring only (leaving the underlay which was originally put down, in place) with boards of the same (if not better) technical standard of what is currently in place.

              Over the weekend, the management agent has said we can replace 5-10% without the need for an LTA, but again, the points I make in the previous paragraph make this option almost preposterous.

              Please let me know if you need any more information.

              Thanks again for all your advice.

              Comment


                #8
                Originally posted by APK View Post
                My argument for replacement is simply, it is impossible for my wife and I to spot replace parts of the flooring as this would mean taking up a large amount of the flooring, and, it is almost impossible to find like for like flooring.
                My view would be that you have (unfortunately) agreed to something that means that you can't replace the floor as a repair without first getting the landlord's agreement.

                The wording that you quote from the indemnity includes the following:

                "Notwithstanding the points made above, we also confirm that this matter does not amount to consent to any proposal you may make for the removal or replacement of the existing flooring (other than with carpet and suitable underlay). If you choose to remove the existing flooring and replace it with new flooring (other than carpet and suitable underlay) then an application for a License for Alterations will need to be made."

                That wording would seem to cover any replacement of the flooring - even if you are only 'proposing' like for like replacement because the existing flooring is in need of repair.
                If you went ahead with the replacement on the assumption that it should be classed as a repair and therefore be allowed, I would think that it could easily go either way if the freeholder/landlord objected and a court/tribunal was asked to decide, and I would think that the clause in the lease requiring carpets might tip it in favour of the freeholder if they want to refuse the replacement (if they argue that the consent was given only for the life of the existing flooring and can give a reasonable justification for denying renewal of this consent).

                Comment


                  #9
                  On the basis of the information you have supplied I cannot help feeling that the conveyancer who acted on your purchase failed to give the issue proper consideration.

                  The position was that a flat was being offered for sale the condition of which was such that, if you had bought with the lease you have without the letter of indemnity, you would immediately have been in breach of covenant. One of two things should have happened: Either the floor was made to comply with the lease or the lease was changed.

                  The idea that you should pay for a licence for something the landlord did before you moved is completely risible as, quite apart from anything else, the landlord did not need to give himself consent.

                  Unfortunately you ended up with the "indemnity". So what about it? You have not indicated if it is made by deed. If it is not, then there has to be doubt about whether it binds a future landlord if he does not have notice of it.

                  As to the wording:

                  as part of the arrangements for completion of the Lease, we [the freeholder and landlord] confirm and agree as follows;
                  1. That we as your Landlord will not take any action against you in relation to the existing flooring within the Property; and
                  2. We will not request that you replace this flooring and confirm that it may remain in situ at the Property and that it is not a breach of the Lease.
                  That is not too bad even if it more or less says the same thing twice. However, it would have been much better if it had been made clear that the floor was as it was because the landlord laid the floor.

                  Notwithstanding the points made above, we also confirm that this matter does not amount to consent to any proposal you may make for the removal or replacement of the existing flooring (other than with carpet and suitable underlay).

                  Not ideally worded. "Matter" is clearly not the right word.

                  If you choose to remove the existing flooring and replace it with new flooring (other than carpet and suitable underlay) then an application for a License for Alterations will need to be made.

                  This is the key sentence for your present situation. On the face of it you have agreed that if you want a new floor you have to apply for a licence. So, apparently you have the ridiculous situation that you were allowed to have a non-compliant floor installed by the landlord but cannot change it for a non-complaint floor of the same specification.

                  As part of this, you will need to instruct solicitors, undertake to pay our legal fees and those of our Managing Agent, to follow the Managing Agent's guidance notes as they exist from time to time and to obtain suitable acoustic reports, provided that if there are complaints from other residents stemming from the existing flooring, we will cover the cost of the License for Alteration referred to above.

                  The second half does not seem to follow on from the first half.

                  The question to be answered is: Does the wording of the indemnity override the general principle that a tenant does not need consent to comply with his obligation to repair?

                  There can be no obligation to replace the existing floor with a floor which is compliant because the indemnity expressly says so: We will not request that you replace this flooring. However, you do have an obligation to repair the floor. Repair includes replacement where necessary. So, what are you to do if the floor is in such a state of repair that it needs replacing?

                  I think the answer has to be that the landlord can hardly say that you cannot carry out essential repairs which are your obligation to carry out. He would be in a tricky position if he inspected and concluded that the floor needing replacing as he cannot require you to replace it.

                  We have a situation like the Zen goose in the bottle koan: There is a goose in a bottle. How do you get it out without breaking the bottle? Small children always come up with the answer straightaway: Break the bottle! They see immediately that the only way to get the goose out is to break the bottle.

                  No amount of thinking will allow us to crack the logical conundrum which the indemnity throws up. Common sense has to apply:

                  The floor needs replacing.

                  You have an obligation to replace it.

                  Replace it.

                  Comment


                    #10
                    Ask youself, in your opinion ( And get someone in to give you a quote, which may say, replace incorrectly laid floor boards - if that is the case ) Was the flooring fitted incorrectly, and immediately before your purchace.
                    or
                    Did the boards shrink.

                    If fitted incorrectly, state this, ( with qoute in your favour ) and demand the sub-standard, incorrectly laid flooring be fixed by the freeholder., as it is unfit for purpose.

                    Comment


                      #11
                      Originally posted by Lawcruncher View Post
                      No amount of thinking will allow us to crack the logical conundrum which the indemnity throws up. Common sense has to apply:

                      The floor needs replacing.

                      You have an obligation to replace it.

                      Replace it.
                      So, if I've understood your post correctly, what you are saying is that the indemnity is poorly written and may be interpreted to require (potentially costly) permission to replace it, even for a repair.

                      However, because the lease will contain a requirement for the leaseholder to keep the property in a good state of repair, the repair obligation should take precedence over a (potential) requirement to get permission for this like-for-like replacement?

                      Comment


                        #12
                        Originally posted by Macromia View Post
                        However, because the lease will contain a requirement for the leaseholder to keep the property in a good state of repair, the repair obligation should take precedence over a (potential) requirement to get permission for this like-for-like replacement?
                        I second the above,
                        but APK, Please answer the following that was in post number 4
                        ( the lease ) It usually states, you are demised
                        the floor boards, internal plaster over the bricks, and either half the floor joists, and half the ceiling joists. If it does not include mention of the joists, - not your property to replace.

                        Tell us what the lease says
                        .
                        But it sounds as though you have not been demised the floor boards, in which case the freeholder is correct -
                        I assume you do not have carpets fitted over the floor boards. ? Please answer this post re - in blue



                        Comment


                          #13
                          Originally posted by Macromia View Post
                          So, if I've understood your post correctly, what you are saying is that the indemnity is poorly written and may be interpreted to require (potentially costly) permission to replace it, even for a repair.

                          However, because the lease will contain a requirement for the leaseholder to keep the property in a good state of repair, the repair obligation should take precedence over a (potential) requirement to get permission for this like-for-like replacement?
                          More or less, yes. I do not think it is possible to articulate a coherent argument which addresses the contradictions inherent in the wording.

                          If you look at it all you get is a discussion like this:

                          Tenant: I need to replace the floor

                          Landlord: I agree. You need my consent because it is an alteration.

                          T. Whether I make alterations is my choice. So long as I do not carry out alterations no consent is needed.

                          L. But you have an obligation to repair the floor.

                          T. But only if you consent, so you say. If you consent to me replacing the floor with like for like I’ll replace it.

                          L. But I decline to consent to a new floor which is the same as the existing one because the existing one is not lease compliant.

                          T. But you cannot make me replace the existing floor with a different floor because the piece of paper you signed when I bought says so.

                          Comment

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