Many residential leasehold owners wish to undertake works to their flats, but most leases contain covenants that restrict the ability of the tenant to undertake alterations.
Usually, the lease will require consent from the landlord before undertaking works, in which case a licence to alter may be required. Alternatively, there may be a complete prohibition on alterations or the lease may be silent on the point altogether.
If the lease is silent…
It would be unusual for a lease to be silent on the issue of alterations.
If it is, however, the tenant is free to undertake alterations to the demised property without first getting consent by obtaining a licence to alter.
If this is the case, it is important to ensure works are only undertaken to the leasehold property itself, and not to any parts of the building that are retained by the landlord.
These will be defined by the lease; the ‘structure’ is usually retained, so works that affect the joists, for example, may not be permitted.
It is also important to ensure that other covenants are not breached if alterations are undertaken. For example, most leases contain a covenant not to cause nuisance to other lessees.
If the lease contains a complete prohibition on works…
Some leases will contain a complete prohibition on alterations. This means that the lease contains a covenant that no works are permitted, and does not make reference to obtaining consent from the landlord. The landlord is therefore not required to grant a licence to alter if they do not wish to do so. In cases such as these, there is nothing the tenant can do.
Note that in these circumstances the landlord could decide to grant consent for a fee and that fee would not have to be reasonable.
However, often the complete prohibition on alterations will only be in relation to ‘structural’ works, in which case ‘non-structural’ works would be permitted.
If the lease requires the landlord’s consent…
Where works are permitted under the lease but the landlord’s written consent is required, the lease will often specify that the landlord cannot unreasonably withhold consent.
Even if it is not specified in the lease, the law still implies that the landlord’s consent cannot be unreasonably withheld if the works are ‘improvements’ from the leaseholder’s point of view.
This means that the landlord can recover their out of pocket expenses for granting consent (such as legal fees), but they cannot also charge a premium.
Other requirements
Usually, other requirements must also be met, such as planning permission and party wall notices (if relevant), so it is important to ensure these aspects are complied with, as well as entering the licence to alter itself.