The tenant’s obligation to get consent
Unless there is an apparent limitation in the Lease Agreement, a tenant is entitled to make the desired changes without first seeking the landlord’s permission. Hopefully, the renter has previously analysed the lease conditions to determine whether they require the consent.
The Clause in the Lease dealing with the alterations is likely to be either:
- Absolute, meaning that no alterations are permitted at all; or
- Qualified, meaning alterations cannot take place without first requesting the landlord’s permission; or
- Hybrid, being absolute in respect of some alterations (i.e. structural) and qualified for other alterations (i.e. non-structural).
It is the Landlord’s responsibility to examine the request.
Where the Clause has been qualified, the Lease may state that agreement to a change cannot be ‘withheld or delayed in an unreasonable manner’. If the change is also an improvement, these terms may be assumed by statute (section 19(2) Landlord and Tenant Act 1927), even if not mentioned explicitly.
Take into account the specifics of the tenant’s request.
When deciding whether to agree to a qualified clause, the landlord must be guided by an objective “reasonable person” criteria. If consent is denied, it must be demonstrated that a reasonably prudent Landlord would have declined for the same reason.
Some examples of refusal to consent include:
- Uncertainty as to whether the proposed modification may affect the structure of the entire building.
- The proposed alteration would negatively affect the landlord’s adjoining business.
Try not to delay with decision-making
When the clause demands that consent not be unreasonably delayed, the landlord must respond within a reasonable time frame. While there is no statutory definition of a “reasonable period,” it will be in the form of days or weeks rather than months. Landlords should therefore act quickly when assessing applications to avoid appearing to be unreasonable.
If consent is refused, consider your options.
If consent is refused and the tenant proceeds with the work, their conduct may constitute a breach of the lease. The landlord may attempt to terminate the lease via forfeiture, an injunction to prevent further work and remove any unlawful alterations, and/or a claim for damages against the tenant.
Take into account that if consent is denied, the lessee has recourse.
If a tenant believes the landlord’s refusal was unreasonable, or the landlord failed to offer consent within a reasonable period (as required under the lease), the tenant may:
- Seek a ruling from the court that the landlord has acted unreasonably and that no further action is required. This is by far the safest option available to a tenant and could be used to rebut a forfeiture; or
- Undertake the works without consent. The effect of unreasonably withholding consent is to release the tenant from its obligation to obtain consent.
If you are a commercial landlord contemplating a request for consent from your tenant or a renter wanting to make changes, or if you have any concerns or questions about these matters, please contact us by calling 0141 433 2626 or emailing legalteam@claritysimplicity.co.uk
