Granting Licences – When Consent is Required.
Most people are familiar with leases containing provisions that restrict a Tenant from doing something. Commonly there are restrictions on how the tenant can dispose of the property (the alienation clauses) and what alterations they can carry out to a property (particularly when the property is a flat).
There are generally two types of covenant – ABSOLUTE and QUALIFIED.
An absolute covenant is a covenant that forbids a tenant from doing something.
The lease might say, “the Tenant shall not assign or part with possession of the property” or, “the Tenant shall not make any alteration to the property”. Any assignment or alterations will be a breach by the tenant and may lead to forfeiture of the lease.
Where an absolute covenant exists, the tenant can seek permission to vary the lease but there is no obligation on the Landlord to grant this.
This type of covenant against alienation would not usually be found in a long residential lease as accepting it makes the property virtually unsellable. An absolute covenant against structural alterations would however be common and consent to alter cannot validly be given without variation of the lease.
A qualified covenant permits the Tenant to do something so long as the consent of the Landlord is obtained in advance.
A qualified covenant might say, “the Tenant shall not assign the premises without the consent of the Landlord in advance” or “the Tenant shall not alter the premises unless he has provided the Landlord with plans of the proposed work and obtained the consent of the Landlord in advance”.
Where a covenant is qualified and relates to alienation, change of use or alterations to the premises, section 19 of the Landlord and Tenant Act 1927 implies wording into the lease – that the consent of the landlord cannot be unreasonably withheld. It is not possible to exclude that provision.
Section 1 of the Landlord and Tenant Act of 1988 also places obligations on the landlord when a request for a consent relating to alienation is made.
If you would like any advice on consent to assign or to alter please do not hesitate to contact Analise Broomhall on firstname.lastname@example.org.