Licence to Alter: What Flat Alterations Need Consent

A licence to alter is the written permission your lease requires before you change the flat. Whether you need one, and whether the landlord can say no, turns on the wording of the alterations covenant. If it is absolute, the landlord can refuse without reasons. If it is qualified, section 19(2) of the Landlord and Tenant Act 1927 applies and consent cannot be unreasonably withheld for improvements. This article covers long residential leases in England; the 1927 Act extends to England and Wales, and Scotland and Northern Ireland differ.

Absolute, Qualified and Fully Qualified Covenants

There are three drafting patterns, and the difference between them decides how much leverage you have.

Section 19(2) applies to a covenant against the making of improvements without a licence or consent. It therefore bites only where the lease already contemplates consent, which is why an absolute covenant is untouched by it. It is also framed around improvements, a word the Act does not define.

Most leases also carry more specific covenants alongside the general alterations clause: an obligation to keep floors covered, a bar on interfering with the structure, a bar on changing the external appearance. Work can comply with one and breach another, so read the whole document.

What Usually Needs Consent

Leases vary, so the table below describes common drafting patterns rather than a rule of law. The underlying test is whether the work touches something the landlord retains: structure, exterior, common parts or shared services.

Flooring causes more disputes than anything else, so be precise about it. A covenant to keep floors covered with carpet is a positive obligation in its own right, so laying hard flooring breaches it whatever the alterations clause says, and section 19(2) does not help. Where the lease is silent on floor coverings, the argument shifts to nuisance and to whether the work disturbs the structure.

Fire doors deserve the same care. A flat entrance door in a block is part of the building’s fire strategy, not simply your front door, and the rules on fire door checks set out who has to inspect what.

What Section 19(2) Gives You, and What It Does Not

Section 19(2) does three things. It implies into a qualified covenant a proviso that consent is not to be unreasonably withheld, and says that applies notwithstanding any express provision to the contrary, so a landlord cannot draft around it. It preserves the right to require, as a condition of consent, a reasonable sum for damage to or diminution in the value of the premises or of neighbouring premises belonging to the landlord, plus legal or other expenses properly incurred in connection with the licence. And where the improvement does not add to the letting value, a reinstatement undertaking may be required if that is reasonable.

What it does not do is start a clock. The belief that a landlord must answer within a set period comes from section 1 of the Landlord and Tenant Act 1988, which requires a written decision within a reasonable time with reasons for refusal and puts the burden of proof on the landlord. Section 1 covers only assigning, underletting, charging and parting with possession. Alterations sit outside it, so the remedy for silence is to press for a decision and, failing that, to seek a declaration from the court.

There is one exception. Section 190 of the Equality Act 2010 applies where a disabled person occupies or intends to occupy the flat as their only or main home and consent is sought for a relevant improvement, meaning one likely to facilitate that person’s enjoyment of the premises given the disability. Long leases are in scope, since the section excludes protected, statutory and secure tenancies rather than long leases. Where the tenant applies in writing, a refusal must carry a written statement of the reason, silence for an unreasonable time counts as unreasonable withholding, and the landlord must show that a refusal or condition was reasonable.

Who Actually Grants the Consent

In a typical block more than one signature is needed. The freeholder is one. Where the lease is tripartite, the resident management company is another, and often holds the practical decision. A mortgage lender will usually want to know about structural work, and the buildings insurer needs telling before work starts.

Right to manage companies have an extra step that is easy to miss. Under section 98 of the Commonhold and Leasehold Reform Act 2002, the landlord’s approval functions under long leases become functions of the RTM company. But the company must first give the landlord notice: at least 30 days where the approval concerns assignment, underletting, charging, parting with possession, structural alterations or improvements, or alterations of use, and at least 14 days otherwise. If the landlord objects, section 99 means approval can be granted only with that person’s written agreement or under a tribunal determination.

Directors are deciding on behalf of the company and every leaseholder in it, not as neighbours doing a favour. Consistency matters: allowing one flat hard flooring and refusing the next makes the refusal hard to defend.

How the Process Works

A licence to alter is a deed, usually executed by the freeholder, the management company and the leaseholder, and sometimes a lender. The sequence runs roughly like this.

1. Identify every covenant the work touches: alterations, structure, floor coverings, external appearance, nuisance, and any obligation to comply with regulations.
2. Establish who has to consent, and whether the management company is a party to the lease or is acting under a right to manage.
3. Submit a complete application: drawings, a specification, a structural engineer’s report where structure is affected, contractor details and insurance, working hours, and how materials and waste will move through the common parts.
4. For an RTM company, serve the section 98 notice and let the 30 day or 14 day period run.
5. Agree conditions and costs, then have the licence executed before work begins.
6. Keep the executed licence with the lease. It has to be produced when you sell.

Expect conditions: a deadline for finishing, an obligation to obtain and comply with all statutory approvals, an acoustic specification for hard flooring, making good damage to the common parts, an indemnity against claims from other leaseholders, and future maintenance of the altered element.

Statutory Approvals Sit Alongside the Lease

Consent under the lease is a private permission and does not satisfy public law requirements. Building regulations approval is needed for many kinds of work, including replacing a fuse box, altering electrics near a bath or shower, installing or replacing a heating system, and replacing windows, doors or roof coverings. For a building of at least 18 metres or at least seven storeys with at least two residential units, building control approval for most work comes from the Building Safety Regulator and must be in place before work starts. Elsewhere the route is local authority building control or a registered building control approver. Unapproved work can lead to prosecution and a fine, and to a sale stalling for want of a compliance certificate.

The Party Wall etc. Act 1996 applies to flats in England and Wales. Section 20 defines a party structure to include a floor partition or other structure separating parts of buildings approached solely by separate staircases or separate entrances, which GOV.UK guidance treats as covering the slab between two flats. A party structure notice under section 3 must be served at least two months before work begins, and it lapses if work has not started within twelve months.

Planning permission is a separate question again. Works of maintenance, improvement or alteration that affect only the interior, or do not materially affect the external appearance, fall outside the definition of development, so internal reconfiguration rarely raises a planning issue. External changes can, and a listed building or a conservation area changes the picture, so ask the local planning authority.

What the Landlord May Charge

Section 19(2) sets the outer limit: a reasonable sum for damage to or diminution in the value of the premises or neighbouring premises belonging to the landlord, and legal or other expenses properly incurred in connection with the licence. In practice that means solicitor costs for the landlord and the management company, plus a surveyor’s or engineer’s fee where the proposal needs competent checking.

Those costs are also an administration charge. Schedule 11 to the Commonhold and Leasehold Reform Act 2002 defines one as including an amount payable by a tenant of a dwelling in connection with the grant of approvals under the lease, or applications for them. Paragraph 2 makes a variable administration charge payable only so far as the amount is reasonable. Paragraph 4 requires a demand to carry a summary of rights and obligations in a prescribed form, and lets the tenant withhold payment if it is missing. Paragraph 5 allows a tribunal application to determine what is payable.

So a landlord quoting an open ended figure, or a flat fee unrelated to work actually done, is on weak ground. Ask for the basis of the charge in writing before agreeing to it.

The Risk of Doing the Work Anyway

Unauthorised alterations do not quietly disappear. The obligation runs with the lease, so a breach committed by a previous owner becomes the current leaseholder’s problem, and it surfaces when a buyer’s solicitor asks for the licence and there is not one. Agents answer that question on the management pack as a matter of routine.

The remedies run from damages and an injunction requiring the work to be reversed through to forfeiture, which is tightly controlled. Section 168 of the Commonhold and Leasehold Reform Act 2002 stops a landlord under a long lease of a dwelling serving a notice under section 146(1) of the Law of Property Act 1925 unless the tenant has admitted the breach, or a court or arbitral tribunal has finally determined it, or the First-tier Tribunal has determined it under section 168(4). Where the route is a tribunal determination under section 168(4), or a court or arbitral determination, the notice cannot be served until 14 days after the determination. An admitted breach carries no such wait.

A section 146 notice must specify the particular breach, require it to be remedied if it is capable of remedy, and require compensation in money, and the tenant must then fail to remedy within a reasonable time. Relief is available under section 146(2). Realistically the cost of unauthorised work is not losing the flat: it is a stalled sale, a retrospective licence negotiated from no bargaining position, and possibly reinstatement.

Where the landlord is content with the alteration, the fix is usually a retrospective licence. Where the lease itself is the obstacle, an absolute covenant that no longer suits the building for instance, the better answer may be to vary the lease.

If you are a director facing an alterations request and you are unsure whether the covenant is absolute or qualified, or whether the proposal touches the structure or the fire strategy, have the lease read and the proposal assessed before you answer. Plymouth Block Management handles licence applications for blocks across Devon, Cornwall and the wider South West on a fixed management fee agreed in advance, and can arrange independent building safety consultancy for buildings under 11 metres.

Common Questions

The questions that come up most often when a leaseholder asks to alter a flat.

Sources

Everything above is taken from these, not from a summary of them:

1. Landlord and Tenant Act 1927, section 19 legislation.gov.uk
2. Landlord and Tenant Act 1988, section 1 legislation.gov.uk
3. Commonhold and Leasehold Reform Act 2002, section 98 legislation.gov.uk
4. Commonhold and Leasehold Reform Act 2002, section 168 legislation.gov.uk
5. Commonhold and Leasehold Reform Act 2002, Schedule 11 legislation.gov.uk
6. Equality Act 2010, section 190 legislation.gov.uk
7. Party Wall etc. Act 1996 legislation.gov.uk
8. Building regulations approval GOV.UK
9. Law of Property Act 1925, section 146 legislation.gov.uk
10. Town and Country Planning Act 1990, section 55 legislation.gov.uk

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