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Ask, before it's too late!

A recent case regarding residential property highlights principles applicable for commercial landlord and tenants too.

In the case of Raja v Aviram [2016] UKUT 0102 (LC) the tenant (Mr Aviram) was a tenant of the first floor of a residential house.  He in turn sublet the property.  The boiler needed replacing and Mr Aviram instructed a plumber to install a new boiler. The installation of the boiler required a hole to be inserted in the side wall of the house.  The installation of the boiler came to light when the tenant of the ground floor flat complained that water had leaked during the boiler installation through their ceiling.

Mr Aviram’s lease required him to seek and obtain landlord’s consent before making any alterations to the building. Mr Aviram had not sought landlord’s consent claiming that 1. He did not know a hole would be required, and 2. he did not have the address of the landlord to write and ask consent prior to undertaking the works. 

The First Tier Tribunal had sympathy with Mr Aviram, in that he did not realise the replacement boiler would require a hole to be created, and as there was no rent or service charge payable, did not have any contact with the landlord and as such did not have an address at which to contact him and ask for consent.  However, on appeal to the Upper Tribunal it was held that the plumber was acting on the tenant’s instructions to install the boiler. Accordingly, Mr Aviram was liable for the actions of the plumber. His instructions to the plumber were to install a new boiler and as such he was responsible for the consequences of his instructions. Further, when the tenant wanted to extend his lease, he instructed his solicitor who was able to obtain an address from the Land Registry easily.  Whilst it was not clear whether he had that information before installing the boiler, it was clear that had he undertaken the same simple search, he could have found the landlord’s address.

The law and the lease required the consent to be sought before the works were undertaken.  The landlord admitted that he would have given consent if he had been asked, but that was irrelevant.  By undertaking the works without consent the tenant was in breach of the lease covenants.

The case acts as a reminder for tenants that where they are required to obtain consent, it must be done before the works are undertaken and a defence of ignorance (whether of the alterations or of how to contact the landlord) will not be readily approved.

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