Right to Enforce Lease Covenants

[alan66]

Hi

I am the tenant of a long leasehold interest in a first floor apartment in a block of 20 apartments. The freehold interest is owned by a company the shares in which are equally (bar two flats) distributed between the leasehold owners (including me).

The flat has wooden flooring in the lounge, dining room and hallway. The two bedrooms are carpeted together with the stairs with tiled floors being laid in the kitchen and bathroom.

A tenant's covenant in the lease is "to keep the flat including the internal passages thereof substantially covered with carpets except that in the kitchen and bathroom all over cork or rubber or other suitable materials for avoiding transmission of noise may be used instead of carpets".

I purchased the flat back in 2006. I raised a question of my vendor who informed me that there had been no complaints about the noise since the floors were laid in 2002. I was also provided on purchase with a number of invoices in respect of the flooring which leads me to believe that the floors were probably laid between 2002 and 2004. The managing agents did not disclose any complaints or disputes or other relevant information in respect of the flat in replies to enquiries provided in 2006. The specification in respect of the flat produced in 2006 also clearly shows pictures of and refers to the wooden floors.

There were no issues at all raised in respect of the floors in my flat until 2009 when I looked to rent the flat out and the advert showed the wooden floors. The lady below then wrote to the managing agents complaining about the noise on a specific occasion when people had viewed the flat. She mentioned that she was not complaining about the noise generally just on that specific occasion and expressed concern as to the tenants given the clause in the lease.

There were no complaints mentioned to me whilst the tenant's were in occupation between 2009 and 2011. I have now moved back into the flat with my husband and 2 and half year old son and agreed with a purchaser to sell the flat.

The directors of the freehold company are now threatening to enforce the terms of the lease and "make" me put carpet down. I believe this is predominantly due to a different downstairs flat having serious problems with noise coming from an upstairs flat (where the stairs are not even carpeted) and the owners of the downstairs flats wanting to ensure that future purchasers of upstairs flats (there are only two storeys in the apartment block) do not install wooden floors and solve the problem with this other upstairs flat.

I obviously feel extremely annoyed about this given the fact that only yesterday it was actually said by the owners of the flat downstairs that they have a problem with the noise from this flat generally. I believe this is mainly due to "toddler"noise and feel that I am being victimised given that I will obviously have to mention this dispute to the purchaser who in the current market may be put off purchasing.

(a) is any claim for forfeiture (presumably that is the only formal action the landlord could take) likely to be successful given the circumstances?

(b) i have offered to lay large rugs in the offending rooms but have been told that it must be fully carpeted? Given the wording of the covenant can full carpeting be insisted upon?

Many thanks in advance for any responses.

[andydd]

At a quick glance I'd say.

a) Yes..although likely to be settled before full forfeiture.

b) I'd think it does mean fully carpeted. Rugs are not carpets.

Provisions in the lease can be overrideen with contracts/agreements but it doesnt appear that that is the case here unless some element of Estoppel can be used ?

Another important point, have you been paying Ground Rent all this time ?. See here > http://www.servicechargearrears.com/...to-forfeit.php

Andy

[leaseholdanswers]

This is one of the messy ones.

There may be an argument for waiver, but that would rely on the earlier complaint having notified the landlord or the agents that the floors were not carpeted.

If they could show that they were unaware up until the complaint was made from the owner ( with nowt better to do but scour the local ads) then there is no waiver until they do something now that does eg accept rent or service charge.

Forfeiture is unrealistic and it is more likely that the judge would direct the installation of carpet and then for it to be referred back to them if you failed to do so.

All of which is costly and likely to lose the buyer.

Now if you can prove waiver, the issues still arises in that there is general covenant in the lease not to do anything that causes nuisance to others, and the solution to that would be to modify the floors with an upgraded underlay or carpet. Would your buyer take that risk?

The lease is unhelpful in specifying that floor coverings are to stop transmission of noise which in the case of hard floors which increase lateral and airborne noises, and therefore a new underline is unlikely to be accepted.

So what that adds up to is

1 Your lease requires carpets
2; If you succeed in claiming waiver, you are likely caught with the nuisance clause in due course
3: Your purchaser is unlikely to accept this

Bear in mind that if you do carpet, you might be asked why and if you explain, & it might put off buyers because of an 'over intrusive' Management - if you have to re offer, withdraw property, carpet first.

Fashion or choice or "everyone has them" is I am afraid, irrelevant, your lease says carpet for a reason ( noise), any deviation and this is the risk you took, sorry.

[andydd]

I wish the lease of the flat above me had a carpet clause, the new tenants are extremely noisy and sound like elephants !, strange becuse I rarely heard the previous occupant (the owner) at all.

Andy

[mattdee]

I would check what is meant by 'substantially covered'. To me the common sense thing is that those areas would need to be covered by carpets for the most part. But the courts may have a different way of interpreting it.

As for forefeiture, will an investment company seek to take forefeit your lease so that they can make a lot of money and charge the legal fees back to you? Of course, they have nothing to loose but you do investment companies like to make money and don't really care about you as a person.

In most cases the freeholder is not aware of a breach, in which case you get away with it. But in this case someone has reported it to the freeholder, it now means you have to deal with it.

[leaseholdanswers]

I would check what is meant by 'substantially covered'. To me the common sense thing is that those areas would need to be covered by carpets for the most part. But the courts may have a different way of interpreting it.

The general principle is that the LVT would start with the ordinary meaning. The lease does not say substantially covered with carpet which would be interpreted as not only in area but in terms of quality of carpet and underlay.

In the majority of cases that would mean filly fitted or in some of the a large mansion flats feature areas, subject of course to the omission to carpet then triggering the nuisance clause.

[alan66]

thanks for the replies everyone....
its looking like we will have to bite the bullet and put carpet down and hopefully our buyer does not love the wooden flooring that much that she does not want to proceed with purchase.
but then she could always roll the carpet off the flooring if we just lay carpet on top of it...

[Galatea]

So probably a large proportion of the flat's area has hard floor?

A tenant's covenant in the lease is "to keep the flat including the internal passages thereof substantially covered with carpets except that in the kitchen and bathroom all over cork or rubber or other suitable materials for avoiding transmission of noise may be used instead of carpets".

The lease is clear: "for avoidance of transmission of noise".Therefore the issue is the soundproofing of the impact noise for which carpeting plus sound-absorbing mats underneath and a specialist firm is probably required. They should give you a certificate and guarantee to show the buyer.

There were no complaints mentioned to me whilst the tenant's were in occupation between 2009 and 2011.

You do not know if the management had received complaints from Environmental Health of the Council or other. Or perhaps the occupiers' patterns changed: some do work and study from home. .

The purchasers, would want to see the "noise transmission"dispute resolved; and whether the carpets you ve laid are effective. You need the agreement of your management for the new floor covering; and the OK of the insurance. Carpeting will raise the floor level and may be the doors might need adjustment.

[Lawcruncher]

to keep the flat including the internal passages thereof substantially covered with carpets except that in the kitchen and bathroom all over cork or rubber or other suitable materials for avoiding transmission of noise may be used instead of carpets

The clause has two halves. The red is the main provision and the blue an exception. The red may therefore be considered without reference to the blue.

What does the red say? It requires the flat (and I think we can take that to mean the floors only though it does not say so) to be "substantially covered with carpets".

"Substantially" is less than "completely". So fitted carpets are not required. How much cover is required to comply with "substantially" is open to argument, but I suggest that a space is substantially covered with carpets if the areas one normally walks on (or would walk on if not occupied by furniture) are covered. I have to disagree with LA who suggests that the quality of the carpet comes into it. It should be noted that the red makes no mention of "avoiding transmission of noise". The sole requirement is that the floors (see above) are substantially covered and that what covers them is carpet. Accordingly, if the floors are substantially covered with something the only remaining question is whether what covers them is carpet; the quality is immaterial.

We can then ask what is a carpet? I think it is no more than a floor covering consisting of two elements: a pile and a backing. More usefully having regard to some comments above, we can ask: is there a difference between a carpet and a rug? I think an essential requirement of a rug, but not a carpet, is that it is designed to cover part of a floor. A carpet may be of two sorts: one designed to cover the whole of a space ("a fitted carpet") and one designed to cover only part of a space ("a finished carpet"). I think that if asked most people would say that the difference between a rug and a finished carpet is one of size. One talks of "hearth rugs" and "bedside rugs" rather than "hearth carpets" and "bedside carpets". There does though come a point when it may be difficult to decide if a given specimen is a small carpet or a large rug. I think the covenant is complied with if the floors are substantially covered with what most people would regard as rugs because the effect is the same - the floor is covered with material that consists of pile and a backing. However, if we go back to my definition at the beginning of this paragraph a rug must in any event be a carpet if it is a floor covering which consists of a pile and a backing.

The next question is: What is the requirement for kitchens and bathrooms? There is a clear choice. You can ignore the blue and comply with the covenant by substantially covering the floor with carpet and carpet includes rugs so long as they consist of a pile and backing. Alternatively, you can take advantage of the blue and opt to use "cork or rubber or other suitable materials for avoiding transmission of noise" so long as it is "all over".

[leaseholdanswers]

I would argue that you have mistakenly broken the clause into two, when in fact it should be 3, the qualifier and referral back to carpets.

1 to keep the flat including the internal passages thereof substantially covered with carpets

2 except that in the kitchen and bathroom all over cork or rubber or other suitable materials

3 for avoiding transmission of noise may be used instead of carpets

The overall intention is to fit either carpet or another material ( as in the K & B) instead of carpets to avoid(ing) the transmission of noise.

Quality therefore does come into it " avoiding" requires a degree of effectiveness, though the bar is set relatively low, and general.

I agree with the discussion of what constitutes a carpet. However any interpretation has to take into consideration the premises, as posted a majority of properties, due to size and the scarcity of low traffic areas, the prominence of entry and exit areas, taking into consideration aesthetics, the practicality of maintenance and economy the most practical solution are fully fitted carpets. In some premises as posted, FF C might not be required but the leaseholder still has to deal with internal passages and the space between those and a large area carpet.

Regard has to be given to the existing breach of a hard floor overlay and its contribution to the leaseholders obligation to meet the above and the general nuisance clause.

[Lawcruncher]

I would argue that...

We could continue the discussion.

Can we agree that if the OP covers the kitchen floor with rugs he is complying with the covenant?

[leaseholdanswers]

If by rug you intended to say carpet it might be possible as the clause allows a suitable material.

I would also look at the the construction of the floors in these areas as they are often different, with concrete screed rather than a boarded finish.

Similarly with a timber floored conversion they are more prone to impact transmission, and airborne noise. In a robust concrete floored block, less prone to impact noise, a large portion would be sufficient to manage that (avoiding) and also to reduce airborne noise ( as long as it was not bare screed on the periphery!)

Ah got it the memory banks giveth- this clause I have seen before in "EstManCo" blocks and is a common one from local authority leases of the 70's and 80's and my archive coughed up what I was looking for in an old dispute from 91.

[mattdee]

Guys, please see http://www.residential-property.judi...r/00101YCA.pdf

[Lawcruncher]

Guys, please see http://www.residential-property.judi...r/00101YCA.pdf

Thank you.

The main point of interest is that the LVT seem to take the view that "substantially carpeted" means not only substantial in extent but also in thickness. The question is whether "substantially carpeted" is the same as "substantially covered with carpets". My initial reaction was that in this case the "substantially" refers only to the extent of the carpet.

[mattdee]

thanks for the replies everyone....
its looking like we will have to bite the bullet and put carpet down and hopefully our buyer does not love the wooden flooring that much that she does not want to proceed with purchase.
but then she could always roll the carpet off the flooring if we just lay carpet on top of it...

I wonder if alan66 is still watching?

It is an annoying backward clause as the lease wasn't written to take into account what is likely to change over the 99 year lease. I've been finding more and more that people don't want carpets for hygiene reasons and sound proofing hard floors means that they are no longer a nuisance. It is a shame that the LVT can't take these factors into account when coming to a decision.