Please would you help? Long term breaches of Covenant requiring floor covering with carpet was discussed in the past. I have a slightly different covenant which states, “the whole of the floors of all rooms and the entrance and the corridors thereof are suitably covered with carpets or other sound insulating material except while the same shall be removed for cleaning repairing or decorating the flat or for some other temporary purpose“.
I purchased the pent house flat in 2013. It has an expensive wooden floor and tiles in the kitchen, en suite and bathroom. The floor was laid, I believe, in 1993 by previous leaseholder.
Because of asthma in the family I have always been keen to avoid carpet and the very reason I purchased it. Since the wooden floor was laid I am the third leaseholder. After three years of occupancy, I received a letter from the solicitor representing our management company asking me “what steps will I take to adhere to that (lease) requirement”.
I am not sure what “other sound insulating material” means above.
I am not sure if the floor laid many years ago had director’s permission. I do know that every floor in the building is concrete and the wooden floor has a very thin polyethylene underneath.
How do I tackle this problem? I don’t want to put down carpet.
Advice from Dafydd Jones, JB Leitch
It is important to adhere to any and all covenants in the lease as failure to do so could result in the Landlord and/or Managing agent (as applicable) taking action against the leaseholder for the alleged breach which can, subject to certain requirements being met, include forfeiture proceedings.
Therefore, it is important to make sure that the obligations under the lease are fully understood and complied with. This will depend upon the wording of the covenant in question, the context and for example, whether there are any further relevant provisions in the lease.
Covenants requiring carpets or other similar material to be fitted are common in leases of flats in a block. It is thought that the intention behind such covenants is to reduce the sound of footfall on floors that may be a nuisance or inconvenience to other leaseholders and occupiers in the units below and/or above.
Based on a simple reading of the covenant cited, it would appear that there is a risk of your flooring being in breach of the requirements under the lease. However, I would recommend that you consider the following:-
- It is noted that the covenant in question refers to the requirement to cover the whole of the floors of all rooms and the entrance and corridors with carpets or other sound insulating material.
- What is meant by “other sound insulating material” is open to interpretation and it can be argued that given that there is no express reference to wall-to-wall fitted carpet, the expression can include floor rugs and mats. The reference to the removal of such carpets or other sound insulating material for the purpose of cleaning, repairing or decorating or other temporary purpose can be argued to support this contention.
- The covenant refers to the requirements of the floors being “covered” and it could be argued that this suggests that such sound insulating material must cover (emphasis added) the floors rather than be fitted underneath the flooring. Therefore, it is difficult to assess whether the thin polyethylene you refer to in your question is sufficient.
- You state that you are the third leaseholder in the property since the wooden floor was laid and that you believe that the floor (referring to both the wooden floor and tiles) was laid by a previous leaseholder in 1993. This is important for two reasons:-
- If it can be established that the flooring was in fact laid in 1993, it could be possible for you to argue that any further action for breach of covenant by the management company by way of legal proceedings is out of time. Generally speaking, there is a period of 12 years from the date of breach of the covenant within which a claimant must issue a claim in the Court. The expiry of this period does not prevent a claim being issued but does provide the defendant with the defence that such action is out of time and cannot proceed.
- It is recommended that you check the date of your lease. If granted on or after 1 January 1996, in the face of any further action for breach of covenant by the management company, it may be possible for you to argue that you are not liable for any alleged breach of covenant by virtue of the Landlord and Tenant (Covenants) Act 1995. Generally speaking, this Act provides that where an assignee becomes bound by a covenant, they will not have any liability under the covenant in relation to any time falling before the assignment. However, this provision would not apply if your lease is dated before 1 January 1996 and was an assignment of the same to you.
- You refer to being in occupation for three years before receiving the letter from the managing company’s solicitors. If it can be established that the managing company were aware of your flooring and subsequently demanded and/or received any ground rent or service charges under the lease, there is an argument that they have waived the right to forfeit the lease and acquiesced to the alleged breach. It is therefore recommended that you check your ground rent and service charge statements as to when these were last demanded and/or paid.
- You state that you are unsure whether the permission of the directors was granted for the floor. It is recommended that you contact the solicitors/conveyancers that acted for you in the purchase of the flat in order to ascertain whether they have any information in this respect.
The above are recommendations only and subject to the information provided. In any event it is recommended that you obtain a full copy of your lease from the Land Registry (available online) and seek legal advice accordingly.
