25 and 25A Ronald Park Avenue, Westcliff-On-Sea, Essex SS0 9QS CAM/00KF/LBC/2023/0010

FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No CAM/00KF/LBC/2023/0010
Between
Barry Maquire and Kelly AllenApplicantSathita Phanphet and Liam PhelanRespondent
Before
Judge A. ArulGerard F. Smith MRICS FAAVUnrepresented for the ApplicantUnrepresented Determination of an alleged breach of covenant under section 168(4) for the RespondentDate 5 May 2025Hearing 2025-02-18Property: Westcliff-On-Sea, Essex SS0 9QSType of application: Commonhold and Leasehold Reform Act 2002

DECISION

Decisions of the Tribunal(1) The Tribunal determines that, for the purposes of section 168(4) of the Commonhold and Leasehold Reform Act 2002, the Respondents have breached clause 2(c) of their Lease (more particularly described below) by removing a non-structural wall without the written consent of the Applicants.(2) The Applicants have not demonstrated that the Respondents have committed a breach of any other provisions of the Lease as alleged in the application including, for the avoidance of doubt, clause 4(c) relating to insurance or paragraph 1 of the Fourth Schedule relating to nuisance.

REASONS

[1]By an application dated 30 August 2023, the Applicant freeholders seek a determination under section 168(4) of the Commonhold and Leasehold Reform Act 2002 ('the 2002 Act’) that the Respondent leaseholders are in breach of their lease of flat 25A Ronald Park Avenue, Westcliff-On-Sea, Essex SS0 9QS (together with flat 25, “the Property”). It is alleged in the application form that the Respondents undertook various works, in breach of clauses 2(c), 4(c) and paragraph 1 of the Fourth Schedule to the Lease.[2]On 12 August 2024 the Tribunal gave Directions, which the parties had complied with. The Inspection and the Hearing[3]The Tribunal inspected the Property, comprising both flats 25 and 25A, on the morning of the hearing day. The hearing then took place at a nearby venue.[4]The parties all attended and were not formally represented, but each had a family member assisting them. Mrs Ann Allen made an opening statement for the Applicants and Ms Matthew made some submissions for the Respondents.[5]The parties had submitted written statements and it was confirmed that they adopted those statements as their evidence. Live evidence was heard from each of the parties. The Tribunal had the benefit of bundles of documents from the Applicants and the Respondents, and a supplemental bundle from the Applicants. These included statements from the Applicants and from Mrs Ann Allen. There was also a statement from the Respondents, and from Mr Frank Halfyard and Ms Matthew.[6]The Tribunal also had before it an application made on 14 December 2024 by the Applicants to admit images showing CCTV signage. These were images taken after the material events and the Tribunal expressed the view that they may have limited probative value. On this basis the parties were invited to deal with the relevance, if any, in submissions. Agreed Facts[7]The Property comprises a Victorian era house in the middle of a terrace, which has historically been converted into two flats – ground floor and first floor.[8]The Applicants are the proprietors of a long lease of the ground floor, flat 25. Ms Allen’s mother appears to have owned the freehold and during this dispute, on 30 November 2022, transferred this to the Applicants.[9]The Respondents are the proprietors of a long lease of the first floor, flat 25A. It has a ground floor entrance which immediately proceeds into a stairwell leading to first floor accommodation.[10]The Respondents purchased flat 25A on 29 September 2022. They did not immediately take occupation, instead engaging contractors to undertake some internal refurbishment works. It is those works which are subject to dispute and more fully addressed below.[11]It is common ground between the parties that a fairly comprehensive refurbishment of flat 25A had occurred during late 2022 and early 2023. This, broadly speaking, comprised plumbing, heating, wiring, lighting, flooring, cupboards and fittings, and general decoration. The radiators were all replaced and the bathroom and kitchen furniture were all replaced.[12]It is also common ground between the parties that the works started around early October 2022 and there was an intense period of activity for at least the first three weeks when stripping out works were undertaken. On or around 24 October 2022, one of the contractor’s foot came through the ceiling of flat 25 from flat 25A above. Further, that the works were not as intense but continued until around December 2022 or early into 2023. There are, however, differing accounts as to exactly what works were carried out and the level of interruption, if any, to the Applicants. The Lease[13]The lease to flat 25A was granted on 1 March 2021 for a term of 125 years (‘the Lease’). The terms of an earlier lease dated 2 May 1986 are adopted therein. The Tribunal noted that the original lease was defective in that it referred to a term of 90 years from 25 March 1905; which was presumably intended to be refer to 1985. Read strictly, the original term expired on 24 March 1995 and was not capable of being extended on 1 March 2021. The parties were not aware of this defect. The Tribunal proceeded on the basis that the Lease adopted the terms of the original lease even if it did not correctly extend them.[14]The relevant parts of the Lease are as follows:14.1 Recital (5) defines the first floor flat (flat 25A) as: “The Flat” means the interior faces of such exterior walls which bound the flat the floor structure (but excluding the ceiling plaster [if any] of the flat below) the ceiling plaster includes all cisterns tanks sewers drains pipes wires ducts and conduits within the same limitations serving the flat exclusively”.14.2 Clause 1 states: “…The Lessor HEREBY DEMISES unto the Lessee ALL THAT the flat situate on the First floor of the Building show for the purposes of identification only on the plan annexed hereto and thereon edged red (hereinafter called “the Demised Premises”) …”14.3 Clause 2 states: “THE LESSEE HEREBY COVENANTS with the Lessor as follows: … (c) not to make any structural alterations or structural additions to the Demised Premises nor to erect any new buildings thereon or remove any of the Lessor’s fixtures without the previous consent in writing of the Lessor.”14.4 Clause 4 states: “THE LESSEE HEREBY COVENANTS with the Lessor and with the owners and lessees of the other flat comprised in the Building that the Lessee will at all times hereafter:(a) keep the flat (other than the parts thereof comprised and referred to in sub-clauses (d) and (e) of Clause 6 hereof) and all walls party walls and sewers drains cables wires and pipes insofar as the same exclusively serve the flat in good and tenantable repair and condition and in particular (but without prejudice to the generality of the foregoing) so as to support shelter and protect the part of the Building other than the Demised Premises(b) contribute and pay one half of the costs expenses outgoings and matters mentioned in the Third Schedule hereto and to pay the Lessor on demand such reasonable sum or sums as the Lessor shall require on account of anticipated expenditure(c) not to do or permit to be done any act or thing which may render void or voidable the policy or policies of Insurance on the Building or any policy or policies of Insurance in respect of the contents of the other flat comprised in the said Building or which may cause any increased premium to be payable in respect of any such policy(d) permit the lessors and others authorised by him with or without workmen and others at all reasonable times on notice (except in the case of emergency) to enter into and upon the Demised Premises or any part thereof for the following purposes: [1] to repair any part of the building and to make repair maintain rebuild cleanse and keep in order and good condition all sewers drains pipes cables water courses gutters wires party structure or other conveniences belonging to or serving or used for the same and to lay down maintain repair and test drainage gas and water pipes electric wires and cables and for similar purposes the lessor or other person exercising such right (as the case may be) doing no unnecessary damage and making good all damages occasioned thereby to the Demised Premises [2] to view and examine the state and condition of the Demised Premises(e) make good all defects decays and wants of repair of which notice in writing shall be given by the Lessor to the Lessee and for which the Lessee may be liable hereunder within three months after the giving of such notice(f) observe and procure that any person deriving title under him observes the restrictions set forth in the Fourth Schedule14.5 The Fourth Schedule states: 1 not to use the Demised Premises nor permit the same to be used for any other purpose whatsoever then as a private dwelling house in the occupation of one family only or for any purpose from which a nuisance can arise to the owner’s lessees or occupiers of the flats comprised in the building or in the neighbourhood or for any illegal or immoral. The provided clause in the lease agreement restricts the use of the premises for purposes that could cause a nuisance to other residents or the neighbourhood. 2 not to do or permit to be done any act or thing which may render void or voidable the policy or policies of insurance on any flat in the Building which may cause any increased premium to be payable in respect thereof 3 The Lessee shall not: (a) make or suffer to be made any unreasonable noise in the premises by way of piano gramophone instrument vacuum cleaner singing or otherwise at any time whatsoever nor (b) play or permit to be played nor use or permit to be used the said things or any of them in any manner whatsoever nor sing or allow any singing nor make any noise of any kind whatsoever between the hours of midnight and 7a.m. on all days.[15]The application specifically relies upon alleged breaches of clauses 2(c), 4(c) and paragraph 1 of the Fourth Schedule. The Issues[16]The issue to be determined in this case is whether there has been a breach of covenant of clause/s contained within the Lease. That requires consideration of:(1) Are the clauses relied upon by the Applicants within the Lease?(2) What are the facts giving rise to the claimed breach or breaches?(3) If proven, do those facts constitute a breach of the lease[17]The Tribunal is not concerned on this application with the seriousness of any breach, whether it has been remedied or whether any right to forfeiture for any breach has arisen and/or has waived by the Applicants. These would all be matters for the County Court if the Applicant makes a separate application for forfeiture of the Lease following service of a notice under section 146 of the Law of Property Act 1925 in reliance on any breaches found by the Tribunal. These limits to the Tribunal’s jurisdiction were emphasised to the parties at the start of the hearing.[18]The burden of proof is on the Applicants to establish the facts and that these constituted a breach of the leaseholder covenants under the Lease. The alleged breaches are in respect of the obligations on the part of the Respondents, as leaseholders of flat 25A. The Law[19]The material provisions of section 168 of the 2002 Act state: 168 No forfeiture notice before determination of breach(1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied.(2) This subsection is satisfied if:- (a) it has been finally determined on an application under subsection 4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.(3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made.(4) A landlord under a long lease of a dwelling may make an application to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred.[20]As made plain by the Court of Appeal in Eastpoint Block A RTM Company Limited v Otubaga [2023] EWCA Civ 879, an application to the Tribunal under section 168(4) is not itself an application for forfeiture of a lease. A determination under section 168(4) of the 2002 Act is no more than a declaration of whether a breach has taken place. If a declaration of breach is made, any proceedings for forfeiture or any other remedy must be pursued, if at all, in the County Court. Furthermore, whilst section 168(4) may be a step towards forfeiture, that is not its sole function. The applicant is doing no more than seeking to obtain a determination by a specialist tribunal that may be used for a number of purposes, including (but not limited to) the service of a notice by the landlord under section 146. The Applicants’ case[21]In summary, the Applicants say that the Respondents carried out works without consent, there were some structural works which were not permissible, landlord fixtures or fittings were removed and other works which required consent. They further allege that there was damage to flat 25 and complain about the manner that the works to flat 25A were undertaken by the contractors, causing noise and disruption. Finally, they say that the carrying out of the aforementioned activities rendered void, or would render void the policy of insurance for the building, or would otherwise impact on future premiums.[22]In relation to the claim for damage to flat 25, there was an allegation that a hole had been created by a contractor’s foot coming through the ceiling creating an opening in the Applicants’ kitchen below. Plaster is said to have fallen. There were also cracks in the ground floor ceiling and walls. It was said that the back bedroom ceiling started bowing.[23]At the hearing, it was apparent that there were three main categories of complaint –(1) that structural work had been carried out and fixtures or fittings removed,(2) that there had been nuisance committed by the Respondents’ contractors and,(3) that the insurance for the building had been compromised (it was put as being voided but we considered the issue in the round).[24]On the issue of structural works and removal of fixtures and fittings, the Applicants rely on clause 2(c) which prohibits structural alterations or additions, or removal of freeholder fixtures. They say that the internal wall removal in the kitchen/diner in flat 25A and the chasing in of walls constituted structural works. They further rely upon the repairing obligations under clause 4(a) of the Lease. They accepted in evidence that certain circumstances may negate these provisions, such as changes in law would override lease. They relied upon a surveyors report as to what fixtures had been removed (largely kitchen and bathroom furniture) although conceded that they had been replaced with new items. They conceded that there was no list of what fixtures were present in 1986.[25]On the issue of nuisance, the Applicants relied upon paragraph 1 of the Fourth Schedule to the Lease. They stated that the interference was over one year, with six months being just the contractors. They stated that contractors came as early 7.15am and would not leave when asked. Their statements and exhibited email complaints to the Respondents rehearsed some instances of confrontation between them and the contractors. They conceded that there was no evidence of the occupants of neighbouring properties complaining. It was put to them that the contractors say that they were not actually working in the early hours, that there was an initial 4-5 months period from 3 October 2022 where works were carried but then things calmed down. They clarified that the first two weeks were very intense. They described the effect of the noise and disruption on their four elderly husky dogs, some of whom had passed away during the relevant time. The dogs spent most of their time under the stairs and hence the Applicants believe the deaths or impact on ill health of the dogs was connected with the noise and disruption.[26]On the issue of insurance, the Applicants rely on clause 4(c) of the Lease. They stated that they had sent a message to the insurers but had received no response. They conceded that they had not produced any documentary evidence that the insurance policy was treated as void by the insurers, or might be. There was no policy wording available. They stated that they believe that no insurer would allow unqualified persons to undertake works in the Property. As freeholders, they felt obliged to inform the insurers. They also noted that not residing in a flat for a year would void policy, although were not able to provide policy wording to this effect or give the exact dates that flat 25A was vacant. In relation to increased insurance premiums, there was no documentation produced however the Applicants gave evidence that they paid approximately £520 for the current year compared to £450 last year. The Respondents’ case[27]In summary, the Respondents’ position is that they accept that refurbishment works were carried out (as summarised as agreed facts above) and that there was some disruption by their contractors (although they were not directly privy to it). They said that it was naivety which led them to carry out works without prior consent, they have not owned a flat before and did not believe consent was required. Upon the assertion that it was, they sought retrospective consent, and it was not forthcoming.[28]On the issue of structural alterations, the Respondents’ deny that any works carried out constituted structural alteration or addition. They say that they checked with the contractor, Mr Halfyard, and he stated that this was not structural. Ms Matthew had known him a long time, so they trusted his judgement. In respect of fixtures, they believed that it was permissible to replace new for old, they were improving the value of the Property. They relied upon a homebuyers survey undertaken during the purchase process, which made recommendations for general modernisation of the bathroom and kitchen, and flat 25A generally. As for their repairing obligation, they said that they believed that they were entitled to improve the condition of their flat. The works were done competently and all gas and electrical works were certificated. There was only one issue with a light switch at the bottom of the stairs, this was traced to a faulty lamp which was replaced.[29]On the issue of nuisance, the Respondents accepted that there was some disruption to the Applicants, albeit they were not present at the Property so did not witness it themselves. They said it was likely to have been more of an issue only in the first few weeks of the works and that, to their knowledge, all works were carried out within permitted hours. They described these as 8:00 am to 18:00 pm on weekdays and 8:00 am to 13:00 pm on Saturdays. There was no work on Sundays except occasional tool collection, with advance notice to the Applicants. They said that it was notable that no other neighbours had complained. They spoke to Mr Halfyard and he wanted to resolve matters. They conceded that he probably was not present on site as much as he should have been. Following completion of the works, they offered around £6,000 to the Applicants but they refused to accept this. They expressed unhappiness that relations had become strained. Miss Phanphet scared to stay in the flat so did not do so very often because of this. They are dog lovers so never intended any harm to the Applicants’ dogs but denied that they had caused this and pointed to the lack of evidence connecting the refurbishment works with the death of any animal.[30]On the issue of the insurance, the Respondents said that they did not believe that the insurance was voided. They said that no insurance details had ever been given to them. The Tribunal’s determination[31]The Tribunal is required to determine the question of whether there has been a breach of covenant on the civil standard of proof, i.e., on the balance of probabilities.[32]The Tribunal determines as follows:[33]It is clear from the Lease that flat 25A comprises everything within its four walls including the previous internal wall, bathroom and kitchen furniture, cisterns, tanks, sewers, drains, pipes, wires, ducts and conduits exclusively serving it. Clause 2(c) of the Lease expressly prohibits the removal of the freeholders’ fixtures in the absent of prior written consent. There is no inventory to identify what fixtures were existent in the flat when the original lease was incepted in 1986.[34]The Lease includes at clause 4(a) a repairing obligation to ensure that the flat is kept in good tenantable repair and condition.[35]It was apparent on inspection of flat 25A that extensive refurbishment had been carried out including: replacement of radiators and associated pipework; replacement of bathroom furniture (sink, faucet, toilet, and bathtub; replacement of kitchen cupboards, shelves and cabinetry; doors and skirting boards except the entrance door, hardwood flooring (we were told carpet existed originally); replacement electrical fuse board with consumer unit; replacement electrical rewiring and new outlets; replacement light fittings. It is likely in the Tribunal’s view that some adjustments were made where replacements have been made, for example to plumbing fittings and electrical outlets.[36]The works undertaken involve removal of fixtures for the purposes of replacement, such as radiators, kitchen furniture and bathroom furniture. The Tribunal has insufficient evidence to determine whether the items present were present in 1986 or at some later date as replaced by the freeholders or their predecessors. The Tribunal accepted the evidence of both parties that prior consent was not obtained before removal of the items. In broad terms works appears to have been carried out to a modern and reasonable standard, although a detailed condition was not carried out and is not the function of the Tribunal.[37]Clause 4(a) of the Lease requires the Respondents to keep their flat in good and tenantable repair and condition (our emphasis). It does not require the consent of the freeholder when undertaking works in fulfilment of this obligation. The Tribunal considers that they complied with this duty, which implicitly requires replacement and in some cases improvement or upgrading of items from time to time. To the extent that this might conflict with any duty not to remove fixtures, the Tribunal finds that a duty not to remove refers to a permanent removal and does not extend to mere replacement. There were no items which were removed and not replaced, hence the Tribunal determined that clause 2(c) of the Lease was not breached in respect of the obligation not to (permanently) remove the freeholders’ fixtures. In any event, where there are conflicting provisions, the Tribunal finds that the Respondents are not in breach of the Lease to the extent that they were obliged to, and have, complied with clause 4(a).[38]On the issue of structural alterations, the Tribunal’s view is that there were no structural alterations carried out by the Respondents. The chasing in of walls to accommodate pipework or wiring does not, in the Tribunal’s view, constitute a structural alteration or addition. The internal wall was non-load bearing and was removed to create an open space between the kitchen and dining area. This appears to have been accepted by the Applicants themselves, for example in an email dated 2 November 2022. In that email they said: “It was a solid brick wall that I don’t believe was structural nor would anyone mind you taking it down, just in a bit more of a peaceful manner which would have been appreciated.” This email is indicative of the view that the Tribunal has formed that much of the objection by the Applicants in this case is to the manner that the Respondents undertook the works, rather than the works themselves. This email also suggests that the Applicants might well have approved the removal of the wall had they had advance notice as required by the Lease.[39]H0wever, the internal wall was not replaced. The consent of the freeholder was therefore required. The Respondents did not obtain that consent so there was a breach of this requirement. It is not for the Tribunal to determine the consequences of such a breach. However, we makes the observation that, in our view, this is not a serious breach in the sense that there was no damage caused to the Property.[40]On the issue of nuisance, the Tribunal accepts the evidence from both parties that there was some disruption, including noise and some damage to flat 25, in particular parts of the ceiling. The Respondents admitted that there had been some damage but the scope and value were not agreed between the parties. There also appeared to have been some confrontations between the contractors and the Applicants. It is not for the Tribunal to determine those issues (nor did it have the evidence to do so), only whether there has been a breach. To the extent that a breach has caused harm, or the works carried out lawfully but still caused harm, that is a matter outside our jurisdiction. The Tribunal considers that there has been no breach. The test for nuisance is whether there is a unreasonable use of land causing interference, as set out by the House of Lords in Hunter v Canary Wharf Ltd [1997] UKHL 14. Internal flat refurbishment works are common place and, whilst errors were made, this does not itself cross the threshold to unreasonableness on the part of the Respondents. The works were not of an unusual type or duration and the Applicants did not satisfy the burden of proving that there was an unreasonable use of the flat by the Respondents or, as the case may be, that they should be liable for the behaviour of independent contractors. For the avoidance of doubt, paragraph 3 of Schedule 4 of the Lease does not apply. It covers the playing of instruments and the like and its wording or purpose does not extend to routine building works.[41]On the issue of insurance, the Tribunal was not presented with any evidence of a breach and cannot find one to have taken place. The Applicants had not presented the Respondents with any insurance documentation by which they could have known what would, or would not, have comprised a breach of the policy terms. There were no policy terms available for review. On the balance of probabilities, the modest increase in premium is likely attributable to natural market increases.[42]In summary, we do not find the majority of allegations of breaches of the Lease proven save that prior consent was required for the removal (and non-replacement) of the non-load bearing wall.[43]We also observe that the dispute between the parties became rather acrimonious and the communications we had seen demonstrated somewhat of a bunker mentality. There was evidence before is of the freeholders installing CCTV footage, and framing extracts from the Lease and hanging them in the common entrance area. There was some solicitors’ correspondence and hostile communications between the parties. There were heated exchanges between the Applicants and the contractors. This is all unfortunate although largely did not assist the Tribunal in determining the central issues of alleged breach. It is hoped that this Judgment provides some certainty so that the parties can resolve their remaining disputes.[44]For the avoidance of doubt, this decision is not an order for forfeiture of the Lease or payment of any sum of money. It is a determination that limited aspects of works undertaken by the Respondents without the freeholders’ written consent amounted to a breach of covenant within the Lease.[45]No application for a refund of fees was made and the Tribunal makes no order in respect of the same. Name: Judge A. Arul Date: 5 May 2025 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). --- decision_2.pdf --- © CROWN COPYRIGHT FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CAM/00KF/LBC/2023/0010 HMCTS code : P:PAPERREMOTE Property : 25A Ronald Park Avenue, Westcliff- on-Sea, Essex SS0 9QS Applicant : Barry Maguire and Kelly Allen Respondent : Sathita Phanphet and Liam Phelan Type of application : Application for permission to appeal Tribunal members : Judge A. Arul Gerard F. Smith MRICS FAAV Date of Decision : 2 June 2025 DECISION 2 Decision[1]The Tribunal has considered the Applicants’ request for permission to appeal to the Upper Tribunal (Lands Chamber) dated 21 May 2025 and determines that:a. It will not review its Decision; andb. Permission be refused for appeal to the Upper Tribunal (Lands Chamber).[2]The Applicants may make a further application for permission to appeal directly to the Upper Tribunal (Lands Chamber). Any such application must be made no later than 14 days after the date on which the First-tier Tribunal sent notice of this refusal to the party applying for permission to appeal.[3]Where possible, the Applicants should make any further application for permission to appeal online using the Upper Tribunal’s online document filing system, called CE-File. This will enable the Upper Tribunal to deal with it more efficiently and will enable the parties to follow the progress of the application and submit any additional documents quickly and easily.[4]Information about how to register to use CE-File can be found by going to the following web address: https://www.judiciary.uk/guidance-and-resources/practice-direction-for-the- lands-chamber-of-the-upper-tribunal-electronic-filing-ce-file/ jU[5]Alternatively, it is possible to submit an application for permission to appeal by email to: Lands@justice.gov.uk.[6]The Upper Tribunal can also be contacted by post or by telephone at: Upper Tribunal (Lands Chamber), 5th Floor, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL (Tel: 020 7612 9710). Reasons[7]The relevant provisions in respect of appeals are set out in the Practice Directions of the Upper Tribunal (Lands Chamber) dated 2 January 2024 (“the Practice Directions”).[8]Paragraph 11.14 of the Practice Directions provides that permission to appeal will be granted if the Tribunal considers that the proposed appeal has a realistic prospect of success, unless the sum or issue involved is so modest or unimportant that an appeal would be disproportionate. Permission to appeal may also be granted if the Tribunal considers there is some other good reason for an appeal.[9]The Applicants have filed extensive grounds, comprising 38 pages along with a case list and several enclosures within a bundle totalling 121 pages. There are three core challenges in relation to the Tribunal’s findings on clauses 2(c) 3 (fixtures), 4(c) (insurance) and paragraph 1 to the Fourth Schedule (nuisance) to the Lease. There are additional challenges based on alleged procedural impropriety and application of the relevant legal tests across a range of factual findings. This comprises a wholesale challenge to the majority of the Tribunal’s findings of fact.[10]This decision addresses the pertinent arguments with a view to identifying whether any have a realistic prospect of success or otherwise justify permission to appeal being granted. This decision cannot proportionately deal with every argument which is raised in the appeal document. It is necessary to consider whether, even if an argument has a realistic prospect of being ‘correct’, it would have made a difference to the overall outcome.[11]In relation to clause 2(c) of the Lease, the Tribunal determined that the Respondent leaseholders were in breach for removing a non-structural wall without consent but found that removal of other fixtures was not a breach; because they were replaced.a. The Applicants say that the Tribunal erred because removal of a fixture is a breach even if new items are installed thereafter. They say that contractual obligations must be interpreted strictly, not diluted by convenience. In Arnold v. Britton [2015] UKSC 36, the Supreme Court highlighted that contractual interpretation must be by reference to the parties’ intentions as a reasonable person with the background knowledge available to the parties would have understood them to be. This requires focusing on the meaning of the relevant words in their documentary, factual and commercial context, but disregarding subjective evidence of any party’s intentions. To the extent that there is ambiguity, the Lease is ostensibly the freeholder’s document, therefore the doctrine of contra proferentem would favour the Respondents. The Tribunal’s interpretation that removal means permanent removal in the context of freeholder’s non-structural fixtures in a long residential lease was open to the Tribunal on the facts.b. The Applicants say that the Tribunal erred in finding that the absence of a 1986 inventory prevented a finding of breach because this failed to recognise that title to any fixtures present passed to them as freeholders upon each historical assignment. Further, that a fixture is defined by the degree and purpose of annexation, not the existence of an inventory. This misses the point that there was no evidence of what was present or not at any time prior to the material events. An inventory was one way of satisfying this. Exploring the degree of annexation was another. The Applicants provided neither. It was open to the Tribunal to find that the Applicants had not provided sufficient evidence as to what items were removed and whether they belonged to the Applicants.c. Even if the Applicants succeeded in demonstrating that the Tribunal erred on both (a) and (b) above, there is no realistic prospect of demonstrating that the overall outcome would have been different. It was open to the Tribunal to find as a fact that clause 4(a) comprised a covenant on the leaseholder to keep the premises in good and tenantable 4 repair and condition, that this included an obligation to renew items and that such renewal did not require the freeholder’s consent. Lister v Lane and Nesham [1893] 2 QB 212 does not assist the Applicants. It supports the proposition that a covenant to repair is not a covenant to give a different thing from that which the leaseholder took when they entered into the covenant. However, to allow fixtures to deteriorate without replacement would be to give something less. That replacement gives something more does not negate the fact that it may be necessary or desirable to avoid giving something less.[12]In relation to Clause 4(c) of the Lease, the Applicants say that the Tribunal erred in requiring evidence of actual insurance voidance or premium increase rather than considering a lower threshold of whether any act or thing done by the Respondents may have had such effect.a. The Tribunal decision makes clear that the Applicants did not provide a copy of the terms of any policy. There was therefore no evidence before the Tribunal by which to say whether any of the works carried out by the Respondents, or activities of their contractors, or the contractors’ qualifications or insurance (or absence of) could, hypothetically, constitute a breach of any policy. Likewise, without evidence of any claim or notification to the insurers, or application for renewal terms, there was no evidence before the Tribunal that anything the Respondents or their contractors did could, hypothetically, affect the premiums. It was open to the Tribunal to require evidence rather than suppose that it was more likely than not that an insurer had any right to void the policy or had taken account of the risk of historical unauthorised works in setting a marginally higher premium.b. The Tribunal was entitled to consider that ‘may’ was not an abstract concept and needed to be grounded in some specific obligation under the terms of a specific insurance policy and by reference to specific activities by the Respondents. The finding that the Applicants did not prove its case was open to the Tribunal. The burden was on the Applicants and the suggestion that the Respondents should have provided counter evidence that premium increases were not due to any act or omission by them has no prospect of success.c. The Applicants argue that no structural assessment was carried out before the non-load bearing wall was removed; thus, it is argued, placing the insurance policy at risk. Leaving aside the absence of the policy wording to verify this, the Respondents’ evidence was that their builder assured them that he was confident that the wall was non-structural. This transpired to be correct. It was open to the Tribunal to find on the facts that there was no risk and therefore require more than assumption that an insurer would have exercised any avoidance rights based on potential risk.d. Fargnoli v GA Bonus Plc [1997] CLC 653 does not assist the Applicants. There were no facts to disclose to the insurers; there was no evidence to say that the mere loss of the opportunity to investigate whether the wall 5 was structural or not was a disclosable risk. Even if the Applicant succeeded in showing that deprivation of that opportunity ‘may’ have voided the policy, there was no policy wording available or evidence from the insurers to support any obligation to tell them anything at all at that early stage of the works.e. The Tribunal decision refers to the Applicants’ own written admission that the wall was non-structural. The Applicants cannot have reasonably believed that the policy was at risk of being void or voidable. There is no realistic prospect of a finding that the Tribunal erred in failing to accept on the balance of probabilities that an insurer would regard the policy at risk.[13]In relation to paragraph 1 of the Fourth Schedule of the Lease, the Tribunal heard evidence of the interferences described by the Applicants but made a factual finding that they did not cross the threshold to become actionable nuisances.a. There was no evidence of complaints from neighbouring properties. The Respondents did not deny that there had been noise and some altercations but did deny that work had commenced as early as contended for by the Applicants. The Respondents’ evidence was that they did talk to their builder and were assured that care was being taken. The duration of the interferences was short and in keeping with the type of works undertaken.b. Hunter v Canary Wharf [1997] UKHL 14 was relied upon for the general proposition that an interference must constitute an unreasonable user of land to comprise a nuisance. This is coupled with the give and take principle (Bamford v. Turnley (1862) 3 B & S 66). It is correct that this principle can be adapted for older buildings or flats. It was open to the Tribunal to find on the facts that the threshold of unreasonableness was not met where domestic works were carried out over a short period and the Applicants were the only ones who had complained. There is no realistic prospects of this finding of fact being an error of law.c. Paragraph 1 of the Fourth Schedule of the Lease prohibits use “from which a nuisance can arise.” The Applicants contend that this is broader than common law nuisance but cite no support for this proposition. There is no realistic prospect of a finding that the Tribunal erred in inferring a test of unreasonable user into the Lease wording; such is within its function of contractual interpretation.d. It is correct that a leaseholder can be vicariously liable for the nuisance of a contractor if the nuisance was a foreseeable consequence of the contractor’s activity, and the leaseholder took no steps to avoid the nuisance. This requires there to be a nuisance, which the Tribunal found was not the case. Even if the Applicants were to demonstrate that such finding was in error, the Tribunal was entitled to accept the Respondents’ evidence that they spoke with their contractor and took steps to avoid the nuisance. Further, the correspondence referred to, 6 including from solicitors, occurred after the initial disruptive works when the Respondents’ flat was being stripped out. Sedleigh-Denfield v O’Callaghan [1940] AC 880, is distinguished, it is not sufficient to merely be ‘aware’, the leaseholder must ‘adopt’ the nuisance, ostensibly or by continuing it themselves. There was no evidence before the Tribunal that this occurred and there was insufficient passage of time for the Tribunal to infer it (nor was it invited to).[14]In relation to procedural matters:a. Insofar as the Tribunal made factual errors over(i) the location of defective light fitting (hallway / bedroom),(ii) the CCTV (timing of installation) and(iii) the offer (offer not accepted / no agreement over quantum) none were material to the outcome. There is no realistic prospect of the Applicants demonstrating that the findings as to breaches or not of the Lease were contingent on any of these points of fact.b. The signed surveyors’ report was considered by the Tribunal as shown on page 61 of the Applicants’ hearing bundle. The observation from the Tribunal was merely that the report was signed by the surveyors’ firm not the individual surveyor. There was no comment to say it would not be considered. The report was not mentioned in the decision because it deals with the extent of works carried out and this was not in issue.c. It is not accepted (according to the panel’s notes) that, during the hearing, the Applicants were explicitly informed by the Tribunal that case law could not be used as part of their submissions. It is unlikely that such a comment would be made in such blanket terms. It is possible that the Applicants were told that a point of law was trite law, or mentioned in their papers, and did not need to be repeated. Even if the Applicants’ account is accepted, they did in fact rely upon several authorities – see, for example, pages 70 to 72 of their hearing bundle. On page 71 therein, reference is made by the Applicants themselves to Hunter v Canary Wharf [1997] UKHL 14. The appeal is therefore misconceived in suggesting (i) that no authorities were permitted or considered, given that the Applicants’ own authority was considered, and (ii) that the Tribunal deprived the Applicants of authorities yet relied upon authority itself, given that the case relied upon was cited by the Applicants themselves.[15]In the circumstances the Tribunal does not consider that there is any realistic prospect of a successful appeal in this case. The Tribunal also does not consider that there is any other good reason for an appeal and therefore permission to appeal is refused. Name: Judge A. Arul Date: 2 June 2025