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10 April 2012
A recent Court of Appeal case caught the eye of Attwells’ litigators who, from their offices in St. John’s Wood, are frequently called upon to advise in relation to management issues arising from high value residential bocks of flats.

The facts were that the claimants were tenants of a flat. The defendants were tenants of the flat above. They, with express permission from the landlord, had laid wooden flooring throughout. The floors had been laid at a cost of £100,000 and all radiators removed and replaced with underfloor heating.

The clam was that the defendants were in breach of the obligation in their lease to keep the floors covered with carpet and underlay with the result that noise was penetrating into the claimants' flat.

The judge dismissed the claim. The Court of Appeal dismissed an appeal. The landlords had expressly consented to the defendants' works which had necessarily envisaged that no carpeting would be laid over the new floor. The covenant was no longer capable of enforcement in respect of that flat, it had been waived and could not be enforced against the defendants with or without good reason.

This is a cautionary tale for landlords and litigants.

Landlords will frequently come under pressure to allow wooden flooring in accordance with modern trends. The difficulty is that once permission has been given and relied upon it cannot be withdrawn at a later date on the basis of a complaint because that complaint will usually be about normal domestic use which is not actionable as a nuisance. The contractual position, having been varied, will leave the landlord without a remedy.

The parties in this case were also criticised for having not considered mediation, a consensual attempt to agree thing confidentially and at a low cost. These litigants had gone “straight to court” and the unsuccessful claimant was left with a costs bill of £140,000.

LJ Jackson commented: -

“Thus the total costs thrown away amount to £140,134. If the parties were driven by concern for the well being of lawyers, they could have given half that sum to the Solicitors Benevolent Association and then resolved their dispute for a modest fraction of the monies left over.”

Attwells’ dispute resolution team help you to settle issues before you get to Court thereby avoiding the sort of problems the Claimants encountered in this case.

Click here for a link to the full judgment

For assistance in relation to property disputes please contact Will Oakes at

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