Court of Appeal lay’s down the law on carpets in flats

Where a Landlord has agreed that the Leaseholder can install timber flooring and under floor heating as part of substantial alterations to a flat, that Landlord cannot then enforce a Clause requiring the Leaseholder to cover the floors of the flat with carpet and underlay.

This was the recent decision of the Court of Appeal in Hameed Faidi –v-  Elliot Corporation.

Problems of noise nuisance are a familiar issue where the installation by a flat owner of timber or laminated flooring in a flat causes a disturbance in other flats, especially in older or converted buildings.

The increased sound of footsteps will not be considered a legal “nuisance” because the disturbance caused by people walking across floors in the ordinary use of the flat will be considered every day use and not specific anti-social behaviour.  The removal of carpets may also mean other noise such as televisions and music are more likely to be heard in neighbouring flats.

Many Landlords have attempted to prevent such a situation by having a specific Clause in the Lease that all floors in the flat should be covered with underlay and carpets except in the kitchen and bathroom.

If the Leaseholder fails to do this and matters cannot be resolved by discussions between the Leaseholders then ordinarily the Landlord can seek an Order of Specific Performance in the County Court requiring the offending Leaseholder to install underlay and carpets.  If the problem continues it may be that the Landlord considers obtaining a determination that the Leaseholder is in breach of the terms of the Lease which the Landlord then seeks to forfeit.

In this case however the Landlord approved substantial works by way of a Licence to alter which included the installation of timber flooring and under floor heating.  The Leaseholder was required to install sound absorbent material between the floor structure and the timber flooring to achieve the minimum requirement for sound insulation as now required by the Building Regulations.  This the Leaseholder did.

Subsequently the Landlord sought an Injunction that the Leaseholder should comply with the requirement that the floors were covered with carpet and underlay.  The Court of Appeal concluded as did the Judge at the initial hearing,  that the permission allowing the installation of timber flooring under  floor heating and sound absorbent material  meant that now for the Landlord  to insist on compliance to install underlay and carpet was inconsistent with the works that the Landlord had approved. Laying carpeting on the new flooring, the Court of Appeal found, would have frustrated the purpose of the alteration works and would have been highly incompatible with them.  To enforce the covenant  would have been at odds with the works having already been done and the expense incurred.  The aesthetic attraction of the timber flooring would have been lost and indeed new heating would have had to be installed.  The general provision of the Lease for carpets and underlay to be installed could not prevail over the subsequent specific agreement between the Landlord and the Leaseholder for the works to be carried out.

Great care therefore should be taken when giving consent to alterations to ensure that it is not inconsistent with the terms of the Lease.  Any Licence should also where possible be personal to that Leaseholder and not the Lease generally and subject to withdrawal if nuisance is caused.  Not surprisingly the Court of Appeal noted that a mediated solution would have been hugely beneficial in this case but the Court could not order partial carpeting of only certain areas.  The Court could only either find the requirement to lay carpet was fully effective or not at all.

If you have any queries concerning such breaches of Leases, or any other breaches of Leases please contact Jeremy Teall on 0208 567 3477 or by e-mail on jteall@prince-evans.co.uk.

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