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.

6 Comments

  • Posted 23rd June 2019

    azar Mortazavi

    I am 75 year old live in my own after 4 years my basement neighbour decided I cannot have wooden flooring what chance do I have to go to court?

    • Posted 15th July 2019

      Lianna

      Hi Azar,

      I have forwarded your comment to the correct team to answer it – please do keep an eye on your spam emails in case they go into there.

      Many thanks

    • Posted 23rd July 2019

      Lianna

      Thank you for your e-mail .

      Your particular circumstances will depend on the contents of your Lease as the provisions on floor coverings vary from Lease to Lease and the exact wording will need to be considered.

      There may be specific wording on flooring or there may be a provision for the Landlord or managing agent to introduce additional rules or regulations for the better management of the block or building at a later date that the Lease which adds flooring requirements .

      In addition it will be necessary to establish what action if any a Landlord or agent has previously taken, either with regard to the flat itself for example giving permission for the flooring to be laid as part of approved alterations or being deemed to have accepted the alternative flooring if it was installed some time ago and has requested rent and/or service charges in the meantime or how other flats have been treated regarding flooring.

      Please note that the transmission of every day noise however is not technically a nuisance as far as any breach of the Lease is concerned . In addition if a Leaseholder wants the Landlord to enforce a term of the Lease on another Leaseholder there may be a provision in the Lease that the Leaseholder making that request indemnifies the Landlord for his/her legal costs, in other words the Leaseholder has to meet the Landlord’s legal fees for doing so.

      On occasion nuisance can arise from misunderstanding between tenants or straightforward change of behaviour, so it may well be worth considering a form of mediation. Some local authorities do offer neighbour mediation services .

      I would also add that any managing agent should follow the RICS guidelines on managing properties which will include a proper investigation and consideration of any issues such as this that may arise.

      If wooden flooring is being installed then again the terms of the Lease will be key. It may be worth investigating if the installation of wooden flooring with high performance acoustic underlay which has the same effect as carpet and Underlay will be acceptable to the Landlord (with professional advice to justify that) but in normal circumstances (and I have not seen the relevant Leases) it will be at the discretion of the Landlord , not the Leaseholder below and it may be subject to that consent not being unreasonably withheld .

  • Posted 26th June 2019

    patricia

    HI im writing has in 80yrs old and I have been living here happy for 7yrs with out any sadness till know.a guy lived above me for yrs then he had a young family moved in also with him, they don’t have no carpets down so the kids ride there bikes in there flat above my bed,running up and down the rooms above my head,washing machine going at 8 oclock at night when im trying to go sleep.i have asked the landlord to get carpets down and he wont so what is my rights has a tenant has its making me really ill and now im on antedeppresents tablets to help me with all the sadness im in here please help with your advice many thanks

    • Posted 15th July 2019

      Lianna

      Hi Patricia,

      I have forwarded your comment to the correct team to answer it – please do keep an eye on your spam emails in case they go into there.

      Many thanks

    • Posted 23rd July 2019

      Lianna

      Thank you for your e-mail .

      Your particular circumstances will depend on the contents of your Lease as the provisions on floor coverings vary from Lease to Lease and the exact wording will need to be considered.

      There may be specific wording on flooring or there may be a provision for the Landlord or managing agent to introduce additional rules or regulations for the better management of the block or building at a later date that the Lease which adds flooring requirements .

      In addition it will be necessary to establish what action if any a Landlord or agent has previously taken, either with regard to the flat itself for example giving permission for the flooring to be laid as part of approved alterations or being deemed to have accepted the alternative flooring if it was installed some time ago and has requested rent and/or service charges in the meantime or how other flats have been treated regarding flooring.

      Please note that the transmission of every day noise however is not technically a nuisance as far as any breach of the Lease is concerned . In addition if a Leaseholder wants the Landlord to enforce a term of the Lease on another Leaseholder there may be a provision in the Lease that the Leaseholder making that request indemnifies the Landlord for his/her legal costs, in other words the Leaseholder has to meet the Landlord’s legal fees for doing so.

      On occasion nuisance can arise from misunderstanding between tenants or straightforward change of behaviour, so it may well be worth considering a form of mediation. Some local authorities do offer neighbour mediation services .

      I would also add that any managing agent should follow the RICS guidelines on managing properties which will include a proper investigation and consideration of any issues such as this that may arise.

      If wooden flooring is being installed then again the terms of the Lease will be key. It may be worth investigating if the installation of wooden flooring with high performance acoustic underlay which has the same effect as carpet and Underlay will be acceptable to the Landlord (with professional advice to justify that) but in normal circumstances (and I have not seen the relevant Leases) it will be at the discretion of the Landlord , not the Leaseholder below and it may be subject to that consent not being unreasonably withheld .

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