Consent to replace windows: repair or improvement?
Ms Okafor owns Flat 4, an upper-floor flat in an eight-flat 1930s block. She wants to replace her single-glazed timber sash windows with uPVC double-glazed units, citing heat loss and condensation. Her lease contains a landlord covenant 'to maintain, repair and renew the structure and exterior of the Building including the windows', and a tenant covenant 'not to make any alteration to the external appearance of the Building without the Landlord's written consent, such consent not to be unreasonably withheld'. The block is not listed but sits within a conservation area. The managing agent has a standing policy of refusing uPVC in all blocks. Ms Okafor argues the landlord should replace the windows at service charge cost. The agent must respond within 21 days. The reserve for external decorations is £5,000.
1. Is Ms Okafor entitled to require the landlord to replace the windows at service charge cost? Explain your reasoning.
Read the worked answer
Step 1 – classify the work. The lease covenant requires the landlord to 'maintain, repair and renew' the structure and exterior, including windows. That is a repairing obligation, not a duty to upgrade. Replacing sound single glazing with double glazing is an improvement in thermal performance, even if the new frames are efficient.
Step 2 – establish condition. The agent should inspect or obtain a survey. If the windows are rotten, insecure or beyond repair, the landlord must renew them within a reasonable time; the leaseholder can require repair, not a particular specification.
Step 3 – cost allocation. The cost of repairing or renewing defective windows can be a service charge item if the lease permits. The extra cost of upgrading to uPVC/double glazing above the cost of a like-for-like repair is for the leaseholder if she wants the improvement.
Conclusion. Ms Okafor cannot insist on an upgrade at service charge cost. If there is disrepair, the landlord must repair; if she wants uPVC, she needs consent and normally bears the uplift.
2. Can the landlord refuse consent to uPVC, and what process should the agent follow?
Read the worked answer
Consent clause. The tenant covenant is qualified: consent cannot be unreasonably withheld. A blanket 'no uPVC' policy is vulnerable because it ignores the individual case and the lease wording.
Relevant factors. Conservation area status is a legitimate planning consideration, but the agent needs evidence: local planning authority guidance, whether permitted development is removed, and visual impact. Other factors include building insurance, fire and acoustic performance, frame profile and colour, and future maintenance.
Process. Ask for a specification, drawings, FENSA/competent-person certificate and any planning consent. Consider conditions (for example matching profile, colour or glazing bars) rather than refusal. Give reasons in writing. There is no statutory duty to give reasons for refusing consent to alterations (s.1 LTA 1988 covers assignment, subletting and change of use), but reasons are evidence of reasonableness and good practice.
Conclusion. Refusal may be reasonable only if justified by the conservation area or other objective factors; a blanket policy should be replaced by case-by-case assessment.
3. What fee, if any, may be charged for considering the consent request, and what are the leaseholder's remedies if consent is refused?
Read the worked answer
Fee. Any administration charge must be reasonable (Schedule 11, Commonhold and Leasehold Reform Act 2002) and must be authorised by the lease. The agent can recover actual reasonable costs of considering the application (for example surveyor or legal advice), not a standard profit fee unless the lease clearly permits it. Provide an invoice.
If refused. The leaseholder can ask for reasons, use the agent's complaints procedure or redress scheme, or apply to court for a declaration that consent was unreasonably withheld. The FTT generally determines service charges and administration charges, not consent disputes, unless the fee is challenged. If she proceeds without consent, the landlord could seek an injunction, but the cost risk is high if refusal was unreasonable.