Q&A: Two good, too bad

Harriet Durn and Nic Taggart look at consents, in particular, the general principles surrounding the reasonableness of landlords’ refusal to grant consent to tenants. Question I am the tenant of a two-storey mixed-use building in central London. I have sought consent for alterations from my landlord to two sets of works: (1) works to add one floor to the building and (2) works to the ground floor to convert it from business to residential use. I reviewed my lease and noted that I needed to obtain written consent from my landlord (not to be unreasonably withheld or delayed) before I could proceed. I made an application to the landlord for consent, but they refused consent on the following grounds: I had been asked to provide preliminary structural engineer’s drawings for the works, but I haven’t given these to the landlord yet. Some of the works would involve trespass on to property owned by the landlord. I did not give an undertaking to pay the landlord’s reasonable legal costs. The proposals I put forward lacked clarity. Is the landlord’s refusal reasonable? Answer Lease restrictions come in various forms and both statute and case law regulate how they operate. Each case is unique and will turn on its own facts – the reasonableness of a landlord’s decision must be judged against the specific circumstances. In order to advise you fully, it would be necessary to review the terms of your lease. But, on the information supplied and on the basis of recent case law, it is likely your landlord has reasonably withheld their consent. Reasons (1) and (3) above appear to be grounds for a reasonable refusal of consent. You may wish to seek advice on your rights to challenge the landlord’s decision. Explanation Your situation is quite similar to a case recently determined by the High Court. In Messenex Property Investments Ltd v Lanark Square Ltd [2024] EWHC 89 (Ch); [2024] EGLR 11, the tenant sought to undertake alterations at the building, including works to add three floors and to convert the ground floor of the premises to residential use. The landlord refused consent to those alterations and the tenant brought proceedings on the grounds that consent had been unreasonably withheld. The judge concluded the landlord had acted reasonably in withholding their consent to the proposed alterations as: The tenant did not comply with requirements to provide, and obtain approval of, preliminary structural engineer’s plans for the proposed works (similar to reason 1 in your case); and The tenant had refused to provide an unconditional undertaking to pay the landlord’s legal costs (similar to reason 3 in your case). The court held that each was a “good” reason for withholding consent. The judge did however conclude that: The risk of potential trespass on to the landlord’s property was not a legitimate reason for withholding consent (similar to reason 2 in your case); and Lack of clarity as to the proposed works was a bad reason for withholding consent (similar to reason 4 in your case). You will see from Messenex that there were two “good” reasons and two “bad” reasons for withholding consent. The fact some of the landlord’s reasons for refusing consent were unreasonable did not invalidate the other reasons. This reinforces previous decisions such as No 1 West India Quay (Residential) Ltd v East Tower Apartments Ltd [2018] EWCA Civ 250; [2018] EGLR 16 whereby a “bad” reason for refusing consent will only undermine a “good” reason if the reasons are intertwined. It looks as though your landlord has made their reasons for refusal clear. If they had not, this may have given you grounds to challenge the reasonableness of the refusal. In Jacobs v Chalcot Crescent (Management) Company Ltd [2024] EWHC 259 (Ch), the landlord had not clearly identified its reasons for refusing consent to alter and the High Court granted a declaration that the landlord had unreasonably withheld consent on the basis that it had failed to plead the distinct basis of objection to the alterations, among other reasons. In this case, one of the reasons given by the landlord for refusing consent was the risk of structural damage. However, that was not supported by any expert evidence and the court considered that no reasonable landlord would have withheld consent on that ground without an expert opinion. While your application for consent appears to have been rejected and there are no obvious grounds for you to challenge the the landlord’s decision (and you may wish to seek professional advice on the specific terms of your lease), for any tenant wishing to seek consent to carry out alterations, the following points should be considered: Review the terms of the relevant lease carefully, to understand any provisions relating to obtaining consent for alterations. Consider whether there is a statutory right to carry out the particular alteration(s) in question, even if the lease forbids it (them). Make formal application for consent to the landlord, providing supporting information in order for the landlord to consider the application (including professional structural drawings, if appropriate). Respond promptly and fully to any request for further information raised by a landlord. Keep matters relating to consent for alterations separate to any other ongoing issues. The above is not an exhaustive list of preliminary considerations for tenants before carrying out alterations. Harriet Durn is an associate at Charles Russell Speechlys LLP and Nic Taggart is a barrister at Landmark Chambers Photo © Edward Lich/Pixabay