Q: We would appreciate some advice on a matter of alteration to demised premises on medical grounds. The background is as follows: A resident aged 60+ has sleep apnea and COPD ( not in dispute) and has requested an installation of and externally situated air condition unit with and internal high level split vent fixed to an adjacent flats wall. We (the Association Directors) had a meeting and approved consent subject to no adverse comments from the other 26 residents. All relevant information was issued via email to the 27 residents and we have had received four replies for the installation, 10 against, three no comments and 10 no response.
We have informed the resident that to have this installation installed would require a breach of the building walls which under the “Lease Agreement” Paragraph 2 sub para 5 would require permission in writing from the Lessor. We are in a dilemma in which we either ignore the Lease Agreement and the responses from the residents and consent to the installation on medical grounds. The resident is now emailed us to say that he is contact with the Housing Ombudsman, local council & a local MP and seeking to take the Association to court via reference with a solicitor stating legal, procedural, unnecessary & irrelevant remarks.
In fairness to ALL residents we have carried out a clear and informative report to all and now await the final decision on whether to agree on medical grounds or refuse on unsightly air con unit fixed to external wall. It has been suggested by some of the residents that a free standing unit can be used to give the same affect.
FPRA Legal Adviser Nick Roberts replies:
The query raises a number of interrelated issues. I find that there is a considerable degree of misunderstanding over some of the issues that arise where disability and discrimination issues arise in the context of leases. Sometimes the advice offered to those who think they have been adversely affected appears to be over-influenced by the adviser’s view of what the law ought to be, rather than what it is.
Firstly, you seem to be proceeding under the assumption that the request made by the resident falls within Clause 2(5) of your lease. Is this a point upon which you have received legal advice, or is simply an assumption? It is understandable that you might assume that it would cover what the resident is suggesting, but I am firmly of the view that it is not. It refers to ‘…any alteration in the construction….of the demised premises’. The ‘demised premises’ is carefully defined in the First Schedule to the lease. It includes ‘…the plaster coverings of walls but shall not otherwise include any part of the external walls ….of the Building…’ So in proposing making a breach in the external walls the resident is not proposing an alteration. He is proposing to do something to a part of the Building which is not vested in him, and does not belong to him, but to the Company. (I should perhaps add that the final words of Clause 2(5) do not alter this, as the final word ‘thereof’ means ‘of the demised premises’ so the reference there to ‘….the walls timbers ceilings doors or windows’ means the walls, timbers, etc. within the flat. This makes sense and is consistent with the First Schedule as that includes the windows and window frames within the demise). It is important therefore to note that what the resident is proposing is not, as a matter of law, an alteration to his own flat, but an interference to the common parts which, prima facie, would be a trespass.
Clause 2(5) refers to ‘the consent in writing of the Lessor’. Section 19(2) of the Landlord and Tenant Act 1927 is relevant here, because this overrides the exact wording of the lease, and says that Clause 2(5) must be read as if the words ‘such consent not to be unreasonably held’ appeared there. This means that a court can rule on the reasonableness or otherwise of a refusal of consent. But there is decided case law to the affect that this does not extend to alterations which are not alterations to the tenant’s demised premises but which impinge upon property which remains in the ownership of the Company (viz. the external walls). The courts have explicitly said that the reasonableness of a landlord’s consent cannot be challenged if the tenant is proposing to do something which amounts to a trespass to the landlord’s own property. The landlord can refuse, even unreasonably. I can give you the references if you need them to respond to any of the bodies mentioned in your letter.
This does not, of course, mean that the Company cannot consent to an alteration which impinges upon the property retained by it. This is always possible. But it can be on the Company’s terms, including, if you wish, a provision that the installation be removed and the wall made good if the resident ceases to live in the flat.
This is not, however, the end of the story. Section 36 of the Equality Act 2010 does contain provisions which can require a landlord to consent to structural alterations to the common parts, if disability discrimination issues are engaged.. ‘Common parts’ is defined for the purposes of this part of the Act in a way which includes both the exterior main structure and also the common parts within the building. (I cannot think of any legislation where medical issues per se would override the general law, but as what is being described would appear to be a long term health issue it might well count as a disability). However, Section 36 of the Equality Act 2010 has not yet been brought into force, and there seems no immediate prospect of its becoming the law. (At the risk of digression, it is all very well to require those who are in control of common parts to adapt them to facilitate disabled access, but the Act does not address who would have to bear the cost. Further, a problem that I have encountered several times within FPRA is that often the bone of contention is that one leaseholder living on an upper floor of a block without a lift wants to install a stairlift; this might make life easier for her, but it might make the stairs less safe to use for her neighbour who is perhaps a bit unsteady on his feet, and needs to make use of a left-hand or right hand handrail, but will not or cannot make use of a stairlift. How should this conflict be resolve? – either party could invoke a disability discrimination argument. Will the stairlift, if installed, be removed, or should it be left in place? No mechanisms have been put in place to resolve these issues. Unless and until the Government can come up with Statutory Regulations which address these issues and are broadly acceptable to all concerned, Section 36 is likely to remain ‘on the statute book’ but not in force.) The relevant law on disability discrimination, so far as it concerns leasehold premises, is still therefore that contained in the Disability Discrimination Act 1995 which (a) can apply to requests to make alterations within a flat; and (b) can require the manager of common parts to improve lighting, or to provide Braille notices, or to locate lift buttons so that wheelchair users can use them, but does not extend to structural alterations.
Before concluding I ought perhaps to mention that, strictly speaking, you as Directors of the Company are not under any obligation to sound out the views of your member leaseholders, or indeed to act on their views. The management of a limited company is the responsibility of its directors, not its members. The only way in which the members can determine how the directors act is if they pass a Special Resolution (75 per cent of those present and voting at an AGM or other GM; or alternatively the written special resolution procedure may be applicable – a sort of ‘round robin’) which requires the directors to act in a particular way. That said, it may well be good practice to take soundings of the neighbours who will be affected – though be wary of those who have strong views but do not want to take on the responsibility of being a director, as that would involve having to face up to those such as the resident who will be affected by the refusal.
[Submitted June 2016]