[2025] UKUT 342 (LC)

The FTT made few findings of fact. In Marchitelli v 15 Westgate Terrace [2020] UKUT 192 (LC), at [49]-[52], I explained that the purpose of proceedings under section 168(4), 2002 Act, is to establish the facts on which steps to forfeit a valuable lease will then be founded. Before forfeiture proceedings may be commenced the landlord is required by section 146(1), Law of Property Act 1925, to serve a notice “specifying the particular breach complained of” and if that breach is remedied and compensation is paid no forfeiture will occur.   Before a section 146 notice may be served the FTT must determine that “the breach” has occurred (section 168(2)(a), 2002 Act).  It follows, therefore, that the determination required of the FTT must be sufficiently specific to provide the basis of a section 146 notice.  If is not, the County Court will face an impossible task when it is required to determine whether to forfeit the lease or to grant relief against forfeiture.  It is essential that the County Court is in a position, from the FTT’s decision, to assess the seriousness of the breach, the culpability of the tenant, and the appropriate response to an application for relief against forfeiture.  If that degree of certainty is not achieved it may be necessary for the County Court to rehear the evidence which has already been presented to the FTT.  That is not what section 168 contemplates and would render it pointless.    

The following facts appear from the documents or were agreed between the parties during or after the hearing of the appeal.

Stack House is a block of 18 flats on ground and three upper floors, set in its own gardens. The freehold of the block is owned by the respondent, Stack House Residents (Oxted) Ltd, which I will refer to as the Landlord. From its name, I assume that the Landlord is owned by the leaseholders.

Each of the flats in the building is let on a standard form of lease granted initially for a term of 125 years from September 1975. The leases were subsequently extended and the term of Mr Calnan’s lease is now 999 years. In each lease the leaseholder is referred to as “the Tenant”.

The standard form of lease includes a covenant by the Tenant to observe the restrictions listed in the First Schedule. These include, at paragraph 9, the requirement for the Tenant to furnish all floors (except those in any bathroom or kitchen) with sufficient underfelt and carpet to minimise the induction of sound from the premises to any other part of the Estate.

The lease also includes a covenant by the Tenant that they will not make any structural alterations without the previous consent in writing of the landlord (clause 3(i)(e)).

Mr Calnan acquired his lease of Flat 12 on the first floor of the building in July 2019. He wished to carry out some alterations, including the removal of a non-structural partition wall between the kitchen and the adjacent room used as a dining room (although it is referred to on the lease plan as a bedroom). He asked the consent of the Landlord and eventually, after a delay of more than a year, he was granted a licence to carry out the proposed alterations on 30 October 2020. At an early stage of the conversations concerning the licence Mr Calnan made clear that he intended to instal new flooring in the flat (for which the consent of the landlord was not required). On 16 September 2019 he was asked by the Landlord’s surveyor, Mr Sawyer, to confirm that the proposed flooring was suitable for a concrete floor (the structural floors of the building are made of concrete).

The new flooring which Mr Calnan installed as part of the works is of a proprietary vinyl material designed to be laid above a noise barrier marketed under the name “SoundMat 3 Plus”. The FTT was shown a sample of these materials and described them, as installed, as comprising two layers of heavy-duty hardboard with the SoundMat3 Plus layer between them and the vinyl finish on top.

Technical data sheets for flooring materials were provided to the FTT (as they had previously been provided to the Landlord and its surveyor). The data sheet for the vinyl flooring stated that on a six inch concrete slab with a suspended ceiling below the material would reduce impact noise transmission by 56dB. The SoundMat is a composite comprising two layers of acoustic barrier separated by 10mm of acoustic foam and is described by the manufacturer as providing “high quality sound insulation” and as ideally suited where “superior noise control” was required. The data sheet for the SoundMat3 Plus provided noise reduction data for its use with timber floors but not for concrete floors but confirmed that it was also suitable for use with concrete floors.

The Licence granted by the Landlord gave consent for the works described in a schedule. The main items of work were the removal of two partition walls, including the wall between the kitchen and dining room to create an open plan kitchen, and the installation of a new kitchen with a new boiler and appliances (the plans showed that the new boiler was intended to vent through an existing opening in the exterior wall). The list of works did not include the laying of the new floor. The final item of work in the list was to “supply and fit underlay and carpet to the dining area”.

On 5 April 2022 one of the Landlord’s directors, Mr Cook, and its surveyor, Mr Sawyer, inspected Mr Calnan’s flat and saw that the floors of the lobby, the hall and the dining area were uncarpeted. At some point it also came to the Landlord’s attention that the new boiler had been installed in a different location from that shown on the Licence drawings and that a new opening had been created in the exterior wall of the flat to accommodate the necessary vent.

Four months after the Landlord’s inspection, its solicitors wrote to Mr Calnan on 15 August 2022 asserting that he was in breach of covenant by failing to lay underfelt and carpet and threatening proceedings if the breach was not remedied within 21 days. Correspondence followed between the parties and their solicitors in which forfeiture proceedings were threatened both for the failure to lay carpet and underfelt and because the boiler had been installed in a different location from that permitted by the Licence with an additional opening in the exterior wall. In January 2023, in response to the threat of forfeiture proceedings, Mr Calnan acknowledged and apologised unequivocally for the positioning of the boiler and requested a variation of the Licence to accommodate it. On 31 January 2023 the Landlord’s solicitors appeared to agree to that request, subject to a further inspection and the variation being properly documented.

It is a striking feature of the correspondence on behalf of the Landlord that at no stage has it ever been suggested that there is a problem of noise transmission from Mr Calnan’s flat to other parts of the building. The Landlord has treated the requirement to install underlay and carpet as an issue of principle. The Landlord’s approach has been made explicit by Mr Cook who, in a witness statement provided to the FTT, explained:

“Compliance with clause 9 of the First Schedule of the Lease is mandatory. It provides “The tenant shall furnish all floors of the premises with sufficient underfelt and carpets (except those in any kitchen or bathroom) to minimise the induction of sound …”. It is not an option for the lessee to choose how to do it. Any complaints about noise are not relevant to this.”

On 29 August 2023, on Mr Calnan’s instructions, wall to wall carpet was laid in the dining room, hallway and entrance lobby to his flat. On top of the carpet he has placed a number of smaller rugs. These were present in December 2023 or January 2024 when Mr Cook photographed them in the entrance lobby. They were also seen and photographed by the FTT when it carried out an inspection, accompanied by the parties’ legal advisers, on 25 September 2024.