[2025] UKUT 342 (LC)

By section 168(1) of the 2002 Act, a landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (which is an essential prerequisite of the exercise of a right of re-entry or forfeiture under any proviso or stipulation in a lease) unless it has been determined by the appropriate tribunal or a court, or has been admitted by the tenant, that a breach has occurred.

On 18 March 2024, the Landlord finally applied to the FTT for a determination that a breach of covenant in the Lease had occurred. The application alleged nine breaches of the Lease and Licence. Three of these concerned carpet and underlay and alleged that Mr Calnan (1) had failed to fit underlay and carpet in all rooms of the property except the kitchen and bathroom; (2) had removed underlay and carpet previously laid in the lobby and the entrance hall and had failed to furnish these floors with sufficient underlay and carpets; and (3) had changed the use of one bedroom to a dining area but failed to supply and fit underlay and carpet. Three more allegations were concerned only with the boiler and the new opening in the exterior wall. Finally, two general paragraphs alleged that work had not been completed within the period of nine months stipulated in the Licence, and that the Landlord’s costs had not been paid as required by the Licence.

Although the Landlord asked the FTT to find that Mr Calnan was in breach of the Licence, as well as of the Lease, I do not think the Licence is of any practical significance. The FTT did not make any determination that there had been a breach of the Licence, and its jurisdiction under section 168 is restricted to determining whether any breach has occurred of a covenant or condition in a lease. In any event, the breach by making a hole in the wall to enable the new boiler to be fitted had been admitted and a revision of the licence had been agreed in principle. The Licence provides that the right of re-entry (forfeiture) in the Lease will be exercisable if any covenant in the Licence is breached, but it does not say that a breach of the Licence will amount to a breach of covenant in the Lease. Additionally, the Licence permitted the Tenant to carry out the works in the Schedule but specifically did not require that he do so (clause 2.3 of the Licence) so Mr Calnan would not be in breach of the Licence if he omitted the carpet and underlay referred to in the Schedule. He was, of course, already under the obligation in paragraph 9 of the First Schedule to the Lease. To the extent that the costs of the proceedings have been increased by the inclusion of allegations about the Licence, they were unnecessary.

It is the FTT’s finding in relation to the covenant requiring compliance with paragraph 9 of the First Schedule to the Lease which is properly the subject of this appeal. Although three separate allegations were made in the application, only one breach is identified. There was nothing in the Lease which prevented Mr Calnan from changing the use of a room from a bedroom to a dining room, nor from removing carpet previously laid. The only credible allegation of breach of the Lease made in the application is of paragraph 9 of the First Schedule, and it does not become more convincing by being repeated three times. The issue for the FTT was whether there had been a breach of that obligation.