Q&A: A Covenant Quandary, Post Duval

Question

I am the freeholder of a Victorian townhouse with four flats. I have been approached by the tenant of the first-floor flat requesting my consent to convert the flat roof over a rear extension into a terrace. The rear extension forms part of the premises demised to the tenant of the ground floor flat. The leases of both flats exclude the structure and exterior walls from the demised premises and contain covenants absolutely prohibiting structural alterations. I am concerned that use of the flat roof as a terrace by the upper tenant may cause nuisance to the lower tenant. What are my obligations and must I grant consent?

Answer

If the leases contain a mutual enforceability covenant there is a risk that you will be in breach of your obligations under the leases with the risk of a damages claim against you if you grant consent to the upper tenant. If the leases do not contain such a covenant, you may still be at risk of a breach of the covenant for quiet