Taking steps to prevent unauthorised alterations - BMR Bagshot Ltd v Dorchester Mansions


27 October 2021

In the recent case of BMR Bagshot Ltd v Dorchester Mansions (1997) Ltd [2021] 10 WLUK 140 ([2021] 10 WLUK 140) the landlord was able to obtain an injunction against a tenant who was attempting an ambitious schedule of works.

Facts

In this case the tenant within a flat attempted to carry out alterations to their flat without obtaining the landlord’s consent. The lease prevented the lessee from carrying out alterations to the flat without a licence from the lessor, not to be unreasonably withheld, and prevented the lessee from installing additional apparatus connected to the communal water system or altering the existing connections. The proposed works included removal of a number of internal walls, relocating a bathroom, installing new suspended ceilings and new windows and doors as well as re-plumbing and re-wiring large parts of the flat.

The lease contained a standard limitation on carrying out alterations without the landlord’s consent. The building was constructed of concrete slabs on a steel frame and the demise of the flat was only of the internal walls, plaster ceilings and the floor screed. The demise expressly excluded the main structure of the building and the concrete slabs beneath the floors and above the ceilings. The lessee argued that as the works did not affect the structure of the building (though they quite clearly required works outside of the tenant’s actual demise) no consent was needed. 

At first instance the court had been minded to grant the injunction, as there was a large number of works affecting the entire 'inner skin' of the property and as the lessor had retained some control over the appearance and state of repair of the flat it was nonsensical to suggest such extensive works could be done without consent. Since what was demised was only the inner skin, rather than the building as a whole, the judge had been entitled to find, that the extensive works to the flat were alterations to the premises requiring the licence or approval of the landlord.

The injunction was then suspended on terms that the landlord hadn’t fully complied with the requisite intention to proceed by means of a written resolution of all the directors. The reason they had failed to obtain it was partly because the flat owner was also one of the directors of the freeholder company, so quite clearly would not sign the written resolution. 

The High Court upheld the injunction and overruled the first instance judge’s decision on the technical defect in obtaining authority. It was perfectly possible for the company to reach the right outcome through other means, namely a meeting at which a majority of the directors decided to instigate the litigation – which is what they had done.

Comment

This particular case has not thrown up any major revelations in the law but it is a useful case for landlords to use where the tenant is particularly keen to carry out expansive works and has not sought consent or stopped despite being requested to do so.

As with most landlord and tenant disputes, when appropriate care is taken at the drafting stage complex disputes can be avoided further down the line. In this case it paid to be descriptive in the obligations on both parties and as clear as possible about what is expected of the tenant, what has been demised to them and what obligations have been retained by the landlord.

On these facts it was reasonably clear that the tenant was undertaking an extensive scheme of works for which consent would be required, however on other facts that distinction might not be as clear and that is when careful drafting of the lease agreement is important.

How Birketts can help?

Birketts have a specialist team of asset management lawyers that are expert at drafting lease agreements to ensure our clients’ leases always contain appropriate provisions from the outset to prevent difficulties arising in the future. In addition, the Asset Management Team comprises leasehold litigation specialists who are experienced in making applications to the First Tier Tribunal (Property Chamber) to correct defects within the leases that our clients might already have within their leasehold stock.

For further information on how Birketts can help, please contact Clive Adams or Emily Groom.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.

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