Introducing The Alterations Protocol
Hot on the heels of the snappily named Protocol for Applications for Consent to Assign or Sublet (The Alienation Protocol), a group comprising several eminent QCs and solicitors have developed the similarly concise Protocol for Applications for Consent to Carry Out Alterations (the Alterations Protocol).
It applies where a leaseholder wishes to carry out alterations to their property but their lease restricts their ability to do so and obliges them to obtain the freeholder's consent first, historically involving a process fraught with confusion and delay. It is envisaged that by complying with the Protocol landlords and leaseholders alike will have a clearer idea of their obligations and will be able to sidestep disputes resulting in a much faster application process. It is hoped that it will be referred to in leases and similar documents as a common code of practice and used as a way of speeding up the process of obtaining consent for alterations.
Although use of the Protocol is not obligatory nor failure to comply with its terms binding, the Courts may consider any failure to adhere to the Protocol as evidence that a landlord has unreasonably withheld consent.
The Protocol introduces clear guidelines for each stage of the application process, the key parts of which are:
- A leaseholder's application for consent must be sufficiently detailed, and contain enough information, to enable the landlord to know exactly what is being planned and where the works are going to be carried out. Furthermore, all the supporting documentation, such as plans and specifications, should be provided to the landlord at the same time and the application should also make reference to the relevant sections of the lease. At this stage the tenant should also provide the landlord with an enforceable undertaking for the landlord's costs and any disagreement over this aspect of the matter should not be used by the landlord as a reason to delay dealing with the application.
- The landlord should confirm receipt within 5 working days of receiving the application at which time the tenant should also be told if the application lacks sufficient detail.
- The landlord's response should be provided within a reasonable time and should clearly set out his or her position. Crucially, it should state whether the landlord:
a) consents, and if so whether any conditions are attached to such consent;
b) withholds its consent because it does not have sufficient information, and if so what further information it requires;
c) refuses its consent, and if so the reasons for such refusal.
The landlord should also provide complete information about its costs at this stage.
- The Protocol places emphasis on the use of Alternative Dispute Resolution rather than litigation as a way of settling any dispute that does occur. It makes clear that Court should be a last resort once options such as arbitration or mediation have been explored.
A copy of the Protocol, with guidance notes, can be found here http://www.propertyprotocols.co.uk/the-alterations-protocol and if you have any queries after reading this whistlestop tour of the consent for alterations process, please feel free to contact Natasha Rees, Sarah Heatley or Emma Gosling.