What is a Licence to Alter?
Under most residential leases a tenant is required to obtain consent from the landlord and/or the management company before making any alterations to his/her property. It’s a simple process which is also known as “An Application for a Licence for Alterations”. Whether or not consent (a licence to alter) is required will be determined by (i) the scope of works and (ii) what the lease says. In most leases, the landlord will place a restriction on the extent of alteration, extension or other changes and improvements to a property that the tenant can undertake during the term of the lease without first gaining landlord’s consent. The most common alterations which would normally require a Licence to Alter (under most leases) include:
Loft Conversions
Many houses are subject to restrictive covenants contained in old deeds. Although it is unlikely that these will prohibit the conversion of a loft to a room, deeds may contain provisions requiring consent to be obtained for any external extensions to a property from the original builder. If a loft conversion has involved an alteration to the roof then such a provision could be applicable. If a leasehold solicitor thinks there is a potential risk then indemnity insurance will usually provide a quick answer.
When is consent required?
Most leases will usually contain one of three provisions (or a combination of the three) in relation to alterations:
- Absolute Covenant: prohibits the alteration absolutely. Only if the landlord is prepared to waive the clause will the tenant be able to make alterations;
- Qualified Covenant: prohibits alterations except with the landlord’s consent;
- Fully Qualified Covenant: provides that the alteration may only take place with the landlord’s consent which, the clause specifies, must not be unreasonably withheld.
If the lease is silent on the question of alterations then the tenant is free to carry out the alterations as he or she chooses. The Landlord and Tenant Acts of 1927 and 1954 also require that landlord’s consent is not unreasonably withheld and in some circumstances, for example, alterations necessary in order to comply with statute, cannot be withheld. Alterations undertaken by tenants during a lease term (both with and without landlord’s consent) are also a common source of dilapidations disputes, claims and financial burdens for the parties.
Why do you need a Licence to Alter?
From a tenant’s point of view, it is important to establish whether or not a licence to alter is required prior to the commencement of the works as:
- You will almost certainly be in breach of lease terms and will expose yourself to the possibility of enforcement action being taken against you;
- You may experience difficulties in selling your property if you have made unregulated changes to the demise of your property; and
- It may be difficult and more costly to seek to apply retrospectively for consent once the works have been finalised.
For obvious reasons, there are precautions and procedures that need to be followed before a Licence should be granted. The aim of the Licence to Alter is to record all works that alter the tenant’s demise.
Tenant’s Responsibilities
As the tenant, you are responsible for setting out the proposed scope of works to the landlord, which will typically require the preparation of design drawings, structural drawings, building services drawings and specifications. The tenant is also responsible for providing an undertaking that all works will be carried out in compliance with all relevant statutes planning consent, bye-laws, building regulations and in accordance with good working practices. Once the scope of works, drawings and specifications have been approved by the landlord then all such information will be recorded in the Licence to Alter. Any subsequent design or specification change by the tenant will require either an addendum to the granted Licence to Alter, or a new Licence to Alter will be required. Subject to the conditions of the lease it is normal to have a reinstatement clause, whereby the tenant has an obligation to reinstate their demise to how it was prior to occupation. All works would be at the tenant’s own cost. The Licence to Alter has a very important financial relevance, therefore the tenant and landlord have a combined invested interest to ensure the accuracy of the “As Built” drawings and specifications to avoid any dispute at the expiry of the Lease. The complexity of the tenant’s proposed scope of works will determine whether the landlord decides to appoint his own professional team to review and approve any such designs, calculations or specifications put forward by the tenant. The cost incurred by the landlord for procuring such advice is normally made chargeable to the tenant under the terms of the lease terms.
Landlord’s Duties
The Licence to Alter is normally prepared by the landlord’s solicitor and issued to the tenants’ professional team for approval. The landlord’s cost for preparing the Licence to Alter is chargeable to the tenant. In respect of providing consent, the legislation imposes positive duties on the landlord who receive an application for consent, where consent is not to be unreasonably withheld. Those duties are as follows:
- To give consent except where it is reasonable not to;
- To give written notice of the tenant of the decision as to whether consent is to be granted, together with any conditions, which themselves must be reasonable;
- If consent is withheld to supply reasons for withholding it;
- To undertake the above duties within a reasonable period of time.
The burden of proof in any litigation over whether or not the landlord is withholding consent unreasonably will usually be on the landlord to show that the duties have been complied with.
Do I need a licence for alterations to lease to change my property’s windows?
Ultimately, it will depend on the terms of your lease. Generally speaking, you will need a licence for alterations to your lease if you want to make any changes to your leasehold. Do not rely on verbal or written consent from your landlord – you will need the licence for alterations to your lease in order to make sure you’re fully covered. Before asking your landlord, however, check whether your proposed changes would require planning permission – there’s no point going through all the effort of obtaining a licence for alterations to your lease if the council won’t let you make the alterations anyway. You may also need a buildings regulations approval depending on what it is you intend to do. Likewise, you will generally not need planning permission or buildings regulations approval in order to make repairs to damaged windows, but you may need buildings regulations approval if you want to replace your windows entirely or install double glazing, for example. In any case, it is always best to check the terms of your lease and to check with your landlord and local planning authority in order to avoid future problems.
I’ve made alterations without my landlord’s consent – what should I do?
Even if your landlord hasn’t raised any objections to the alterations, it’s important to get a retrospective licence for alterations to your lease otherwise you could have problems trying to sell your property later. Although a retrospective licence can be more difficult to obtain, our property solicitors can help you obtain a licence for alterations retrospectively. You can also obtain retrospective planning permission and buildings regulations approval (known as ‘regularisation) if needed.
