Following on from the successful Alienation Protocol, a new protocol for applications for consent to carry out alterations to leasehold property (the Alterations Protocol) has been launched. It applies where a tenant wishes to carry out alterations but the lease restricts its ability to do so. Compliance with this protocol should help landlords and tenants focus on what they need to do to avoid costly and unnecessary squabbles, identify the issues and resolve disputes quickly through ADR.
Alterations clauses in leases typically fall into two types: those absolutely prohibiting alterations (e.g. such as structural or exterior works) and those requiring landlord’s consent. Even where the lease does not say so, if the alterations are “improvements”, then section 19(2) of the Landlord and Tenant Act 1927 provides that such consent cannot be unreasonably withheld.
The Alterations Protocol requires that any application for consent should adequately describe the proposed works, including by reference to detailed plans, drawings and specifications. There may be a mixture of works within and outside the leased premises, structural and non-structural, requiring consent and not requiring consent. The tenant should identify which are which and provide the information in a single package.
The landlord will usually be entitled to their reasonable and proper costs. The tenant should give an enforceable undertaking for these. Any cap should take into account the complexity of the proposed works, the value of the property, professional advice required, consent needed from a superior landlord and conditions imposed. The landlord should not use any disagreement over this as an excuse not to start dealing with the application.
The landlord should acknowledge the application within five working days, and indicate whether they require further information. If so, the tenant should provide it as soon as reasonably possible.
There is no statutory obligation for a landlord to respond to an application for consent to carry out alterations within a reasonable time, or give reasons for any refusal (unlike applications for consent to assign or underlet, where this is imposed by section 1 of the Landlord and Tenant Act 1988). Nevertheless, the Alterations Protocol directs landlords to respond reasonably promptly and give any reasons for refusal in writing.
The more these protocols are used by the industry, the more beneficial they will be. Both are free and available to use on a dedicated website: http://www.propertyprotocols.co.uk/
A version of this blog will be reproduced as part of an article by the same author in the RICS Property Journal in April 2016.