[2025] UKUT 342 (LC)

On behalf of Mr Calnan, Ms Gopal made four basic submissions. First, that a breach of paragraph 9 could not be identified without evidence that the installation of carpet and underlay would have reduced the transmission of sound between Mr Calnan’s flat and the rest of the Estate. There was no such evidence so the FTT had been wrong to find that there was a breach even when no carpet was present in the dining area, hall and entrance lobby. Secondly, that the presence of the SoundMat barrier satisfied the requirement for carpet and underfelt, so once again the FTT should not have found a breach of covenant. Thirdly, once carpet was laid in the dining area, hall and entrance lobby, the presence of the SoundMat satisfied any separate requirement for underfelt, so that any breach which might have been committed was remedied by August 2023. Finally, even if the SoundMat did not satisfy the requirement of underfelt, the rugs laid on top of the carpet from August 2023 were sufficient to mean that there was no breach.

For the Landlord, Ms Fisher refuted these propositions. The covenant required carpet and underfelt, and for so long as both were not laid one directly on top of the other on the floor, the covenant was breached, irrespective of the amount of sound, if any, which was capable of being transmitted from the flat to the remainder of the Estate.

Before deciding whether the covenant in this case has been breached it is first necessary to understand what it means. That meaning is the meaning which the parties would have understood in 1975, when the obligation was entered into. The meaning of the covenant the parties entered into does not change with time.

The covenant obliges the Tenant to furnish all floors of the premises (except bathroom or kitchen floors) with “sufficient underfelt and carpets … to minimise the induction of sound from the premises to any other part of the Estate”. The covenant is not simply to furnish the floors with underfelt and carpets. It requires “sufficient” underfelt and carpets to minimise sound induction. The covenant answers an unspoken question about how much underfelt and carpet, or what specification of underfelt and carpet the Tenant is required to provide, by describing the outcome which is required to be achieved.

The FTT considered that “the obligation to carpet with underlay did not depend on whether a particular level of sound attenuation was achieved”. If by that statement it meant that sound attenuation was entirely irrelevant, it was clearly wrong. The achievement of sound attenuation is the whole purpose of the covenant, and the level of attenuation is critical to the question of what carpets and underfelt are required.

But the FTT may have had in mind a more subtle point. It may have meant that, whatever level of sound attenuation has been achieved by the installation of modern sound insulation, the covenant will not have been complied with unless some carpets and underfelt have been provided on all floors of the premises. On that interpretation a state of affairs in which no underfelt and carpets are provided necessarily involves a breach of covenant, irrespective of the amount of sound capable of being transmitted to other parts of the building. That seems to me to be the true meaning of the covenant. It prescribes an action, the provision of carpets and underfelt, and the outcome which that action must achieve, the minimisation of sound induction.

In order to determine whether there has been a breach of covenant it is therefore necessary to ask two questions. First, has the tenant furnished all floors in the flat with carpets and underfelt? Secondly, are those carpets and underfelt sufficient to minimise sound induction, or transmission, between the flat and other parts of the building?

Carpets and underfelt are words whose meaning would have been well understood in 1975 when the lease was granted. That meaning has not changed, although the materials from which carpets and underfelt are made are now different. In particular, in the 1970s “underfelt” would have been comprised of a natural material, most probably wool or some other animal hair. Now underfelt is unlikely to be used at all and has probably been replaced entirely by synthetic materials, referred to as “underlay”, the expression used by the FTT. When the lease was first entered into for 125 years, and when it was later renewed for 999 years, the parties cannot sensibly be taken to have intended that the Tenant’s obligation would be to lay underfelt of the traditional kind. The covenant can clearly be performed using modern materials.

While “underfelt” can readily be interpreted as including modern synthetic underlay, I do not think the meaning of “carpets” has changed since the 1970s. In particular, I do not think that a synthetic acoustic barrier laid beneath the upper surface of a floor can be described as a carpet. Nor do I consider that the vinyl flooring laid on top of the various layers of flooring is a carpet.

On the other hand, the requirement to “furnish all floors with … carpets” does not require wall to wall carpeting or carpeting fixed by gripper rods or glued to the floor, as the FTT found and as Ms Fisher argued on the appeal. The extent or quality of the carpets to be provided is governed by the degree of sound attenuation which they achieve, and the first element of the covenant is satisfied so long as there is some carpet on the floors in each room. If sound induction has already been minimised by other attenuation measures which may have been taken, the covenant would be satisfied by a single rug laid in the middle of the room.

I agree with the FTT that a distinguishing feature of underfelt or underlay is that it is a material laid immediately beneath a carpet. Part of the purpose of underfelt is to protect the carpet itself from wear, as well as supplementing its insulating properties. For that reason, I do not think the SoundMat laid between the layers of flooring can be described as “underfelt”. If the same material was laid on top of the flooring, and a carpet laid on top of it, then it may be possible to argue that the covenant would be satisfied as there would be carpet and a material performing the function of underfelt, but that has never been the arrangement in this case.

To my mind the trickiest question to which this covenant gives rise is whether carpets alone, without underfelt, are capable of complying with the obligation. Does “sufficient underfelt and carpet” mean “sufficient underfelt and sufficient carpet” to achieve the required sound attenuation, so that some amount of both must be installed, or is “underfelt and carpet” a composite expression so that a carpet alone which achieved that standard would be compliant?

Taking account of the domestic context, it seems unlikely that the parties intended to be more prescriptive about the tenant’s choice of home furnishings than was strictly necessary. They must also be taken to have appreciated in 1975 that materials and fashions were likely to change over a term of 125 years. They have clearly identified the purpose of the obligation as sound attenuation, and any other reasons for laying underfelt beneath a carpet (such as heat retention or preservation of the carpet itself) are not part of that purpose. It would be inconsistent with that context and express purpose to read the covenant as requiring both carpets and underfelt if carpets alone would minimise sound induction, as in those circumstances the addition of underfelt would be pointless and would not contribute to the objective of the covenant.

I therefore interpret the covenant as requiring only so much carpet and/or underfelt as is required to achieve minimal sound induction. If carpet alone has achieved that standard, there is no need for underfelt as well, and the requirement of “sufficient underfelt and carpets” will be satisfied.

Additionally, and even if I am wrong about the need for both carpets and underfelt, I can see no reason why the covenant should not be fully satisfied by the tenant furnishing every floor in the flat with carpets on which he places rugs. In that situation the lower layer of carpet would act as “underfelt” to the rugs placed on top of it. I have already found that “underfelt” does not describe a particular material of a type in use in the 1970s but refers to a layer of insulation immediately beneath a carpet. The layer providing that insulation can be comprised of any material or fabric the tenant chooses, and in my judgment he is perfectly entitled to provide two layers of carpet rather than one of carpet and one of a more traditional underfelt.