Problems with wooden floors in flats

Kevin Marshall sounds out the problem of wooden floors in flats

The much publicised court case of Faidi Vs Elliott Corporation, relating to a dispute between two leaseholders in a Belgravia block arising from the installation of a wooden floor has caused some alarm in our world. It certainly provoked much debate as the story broke.

This situation has been a long time coming. For many years wooden floors have been seen as ‘de-rigueur’ in high value properties and ever increasing demand for radiator- free under floor heating solutions has probably fuelled this yet further.

The decision handed down by Lord Justice Lloyd in this case was that the wooden floors need neither be removed nor covered over. In summary he effectively went on to state that the floors were intrinsic to the operation of the heating and the design of the flat. In these circumstances, as the wooden floors had the consent of the freeholder as part of a licence for alterations, it might be said that such a judgement was inevitable.

I believe there is a much wider issue here. Where does this judgement leave the landlord in this case? The claim against the neighbour has failed but it does beg the question as to whether the landlord may now be exposed to a claim from the complainant if their lease contains the usual landlords covenant to protect the quiet enjoyment of the lessee. Might it be argued that in granting the consent for the floor, the landlord failed in this obligation?

These are complex issues and I have no desire to stray into the domain of the legal profession. The question should however serve as sobering reading for those of us involved in the leasehold sector and I suggest that extreme caution should apply.

The wording of the vast majority of leases goes something along the lines of……’’ to keep all floors of the flat, save for kitchens and bathrooms, covered at all times with close fitting carpets and good quality underlay’’. I have said for many years now that the fitting of the wooden floor is not technically the issue, it is the absence of a carpet fitted above it that is more pertinent.

What we are actually looking at here, is the landlord being asked to waive the requirement of this particular clause when consenting to wooden floors rather than it being a matter for consent under a licence to alter, in the same way as perhaps moving a partition wall would be.

In most cases these matters are dealt with by way of inclusion in a standard licence but I contend this is fundamentally flawed. One must ask whether many management company constitutions allow for the board of directors to permit such deviations from the lease. In the context of the potential for a claim against the landlord from a disgruntled lessee, failure to protect quiet enjoyment places a grave burden on directors.

Nobody wants to be draconian, particularly in RMC situations where the desire is to facilitate lessees’ wishes whenever possible. The usual presumption is to allow such flooring to be laid subject to adequate sound deadening measures.

In all such cases I would suggest that any consent is granted by way of a separate revocable consent to relax the floor covering clause in the event of any sustainable complaints of nuisance. This would be entirely separate to any ordinary licence for alterations. This is a complex legal question and certainly one where legal advisors would have to consider the specifics of each situation. Where I have been involved in such matters it seems that the lawyers are in some doubt as to how easily enforced such a clause would be if tested. Even so, it seems far better than to deal with the situation as a normal licence matter.

Acoustics are an extremely complex area, and simply agreeing to a scheme on the basis that it incorporates a layer of material which complies with current building regulations standards for noise transmittance between dwellings is unwise. Sound transmittance which would not occur from carpeted floors may still arise and lead to complaints.

If consent is to be considered, it is essential to commission a specialist acoustic consultant to ensure the design is adequate and that it is properly installed. Usually the consultant conducts tests before and after to certify conformity.

Such an approach seems to provide a good balance to the desire to facilitate lessees’ requirements while demonstrating that the decision makers involved have acted diligently to protect the quiet enjoyment of other residents. The cost of employing a consultant would of course be payable by the applicant in each case.

In my own experience, the biggest single factor where wooden floors are concerned is the level of consideration given by the occupants to their neighbours. I have been in numerous flats with original wooden floors and no high specification underlay which have never given rise to a complaint. In these cases the common factor is always that the occupants take care to place rug runners where they walk, apply pads to the feet of chairs and remove shoes when returning home late. Without such simple considerations, even the most highly specified modern flooring can be a source of conflict.

Kevin Marshall - http://www.cardoemartin.co.uk/

Cardoe Martin Limited

2nd Floor 146 New Cavendish Street London W1W 6YQ

Tel: 020 7563 8900