Can our landlord deny us permission to alter our flat?

Q. We are planning to make changes to our flat but we are concerned the freeholder may refuse permission. According to our lease, consent for alterations cannot be “unreasonably withheld or delayed”. If they refuse, what can we do?
A. Leases include two basic forms of covenant against alterations. The first are “absolute” stipulations that simply prohibit certain kinds of changes. Landlords may refuse permission for works, and the courts will not make them even consider the leaseholder’s application.
Indeed, in the 2020 case of Duval v 11-13 Randolph Crescent Ltd, the Supreme Court ruled that a landlord cannot grant a leaseholder in a block of flats permission to perform works that would violate an absolute covenant in a lease, if the lease also contains a mutual covenant that applies to all of the tenants in the block.
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The second are “qualified” covenants against alterations. These state that landlords may give or withhold permission/licence/consent for works. Sometimes, the covenant goes on to say permission cannot unreasonably be withheld. But this qualification is in any event generally implied by section 19(2) of the Landlord and Tenant Act 1927.
With qualified covenants, the basic position is that landlords cannot refuse permission “on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease”. Landlords may properly object on genuine aesthetic, artistic, historic or sentimental grounds. But they may not refuse because of some unrelated dispute with the leaseholder or just to demand money for giving permission.
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If landlords refuse or don’t answer a request to carry out works, leaseholders can still go ahead with the alterations. Obviously, they risk injunction proceedings being brought against them. But they can ask the court to decide that the landlords’ grounds of refusal were unreasonable. Alternatively, leaseholders can take the initiative themselves, and ask for a court declaration that their landlords have unreasonably withheld consent.
In your case you have fully qualified covenant — your landlords must have proper grounds for withholding consent to alterations. If they refuse, you can ask the court to decide whether consent was unreasonably withheld or delayed.
Mark Loveday is a barrister with Tanfield Chambers. Email questions to [email protected]