[2025] UKUT 342 (LC)

Drawing all these points together, I am satisfied that Mr Calnan was in breach of the covenant at paragraph 9 of the First Schedule to his lease between the completion of the works (not later than 5 April 2022 when the uncarpeted floors were seen by Mr Cook and Mr Sawyer) and August 2023 when he laid a new carpet in the dining room, hall and entrance lobby.

There is no evidence that the transmission of sound from Mr Calnan’s flat to the rest of the building would have been improved by the addition of any more carpet or underlay than had been installed by August 2023. If a landlord alleges a breach of covenant, it is for them to prove that it has occurred. Once the floors of the flat had been furnished with carpets, there would only have been a breach if those carpets were not sufficient to minimise the induction of sound between the flat and other parts of the Estate. The Landlord produced no evidence that further sound attenuation could have been achieved by the addition of underlay or more carpet. The Landlord has therefore failed to prove that there was a breach after August 2023.

On the evidence, the breach was remedied by August 2023 when the new carpet was laid. There has been no continuing breach after that date. The Landlord was on notice that the breach had been remedied (at least as far as the entrance lobby was concerned) at the latest by January 2024 when the carpet was photographed by Mr Cook.

As I have explained above, in an application under section 168 it is important for the FTT to identify any breach it finds clearly. If it fails to do so the parties will be little further forward. If the Landlord decides to pursue forfeiture proceedings, in the absence of clear findings of fact the parties will be left having to call the same evidence again in the County Court to resolve arguments about the extent of the breach, waiver, or the terms of relief against forfeiture.

The FTT’s determination in this case is too broad and too imprecise and I set it aside.

I substitute a determination that Mr Calnan was in breach of paragraph 9 of the First Schedule to his lease by failing to furnish the dining area, the hall and the entrance lobby with underfelt and carpet between the completion of the works at the end of 2019 and 29 August 2023. He was not in breach after 29 August 2023.

Mr Calnan is entitled to apply to this Tribunal for an order reducing or extinguishing his liability to pay any administration charge in respect of litigation costs incurred by the Landlord in connection with this appeal. He is entitled to make the same application to the FTT in respect of litigation costs in connection with the application to it. Both applications are under paragraph 5A of Schedule 11 to the Commonhold and Leasehold Reform Act 2002. If Mr Calnan makes an application to this Tribunal, the parties should agree a short timetable for the exchange of submissions, and I will determine the application on paper.