Property Alterations: When is it reasonable for a Landlord to withhold their consent?

Most leases state that a tenant cannot make any alterations to a property without the consent of the Landlord. This consent must not be withheld unreasonably. Recent case law has shed some light on when a landlord can be seen as ‘acting reasonably’ in withholding consent.

Background of the case

In the case of Messenex Property Investment Ltd v Lanark Square Ltd; the lease stated that no alterations or additions could be carried out without prior written consent, which could not be unreasonably withheld or delayed. In 2020 the tenant (Messenex Property Investment) made two formal requests to carry out work. The landlord (Lanark Square Ltd) requested further information before considering the application including structural drawings.

The tenant and landlord went back and forth for over 3 years before the tenant issued proceedings on the basis that the Landlord had unreasonably withheld consent. The landlord claimed that they did so on the following grounds:

1. The tenant had failed to provide structural drawings.
2. The works involved trespassing on property that was owned by the landlord.
3. The tenant had failed to provide an unconditional undertaking (a legal promise) for the landlord’s reasonable costs.
4. There was a lack of clarity in the tenant’s proposal.

During the 3 years the tenant obtained a licence from the landlord which gave them additional rights (such as access of the retained land) to carry out the work. The licence also clarified the works which the landlord had been asked to consent to.

The decision

The Court considered each ground in which the landlord withheld consent and found the following:

1. As the tenant had not supplied the drawings it was reasonable to withhold consent;
2. The trespass point was found to be unreasonable.
3. Although the tenant had tried to give an undertaking it was not a proper unconditional one and as such it was found as a reasonable ground.
4. The lack of clarity was found to be unreasonable.

The Court held that the landlord had not unreasonably withheld consent and did not grant the decision that the tenant had requested.

What we can take from the judgment

There are some key points that we can take from this case.

• The burden is on the tenant to show that the landlord is acting unreasonably.
• Reasonableness should be judged on the facts at the time proceedings were issued;
• There is no particular form that request for consent should follow, what is important is that it is clear to the landlord that such a request for consent to particular works has been made and that a response is required.
• If the landlord is withholding on multiple grounds not all of the grounds need to be found unreasonable.
• It may be reasonable for a landlord to withhold consent for a reason that does not directly relate to the property in question. Such as if it would negatively impact an adjacent property also owned by the landlord.
• The absence of an unconditional undertaking may be reasonably grounds to withhold consent.

It is important to note that every case is looked at on its own facts and while some of the grounds were found unreasonable in this case it is not to say it will in every case.

What we can do for you?

At Attwell’s our commercial team can advise tenant or landlord if such a situation arises. If as a tenant, you believe that consent is being unreasonably withheld we can advise you as such and assist with any claim or Court case you may have or issue. For the landlord we can advise you on your rights and help you defend any such claim if it is bought against you.

Our commercial team is head up by Nick Attwell, who is a partner of the firm and is available on 01473 229242 or you can email Nick at [email protected].

We would always advise on seeking legal advice before acting.

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