Hawksmoor Wren Limited v Farah Cohen

Introduction

1. The FTT found only two breaches of covenant within its remit under section 168(4) of the Commonhold and Leasehold Reform Act 2002 (2002 Act). Specifically, the FTT found that there had been storage of items in the common areas contrary to regulation 3 of schedule 6 of the lease dated 14 December 2005 under which the Respondent held the premises (the Lease) and that the use of the premises as an AIRBNB constituted an unlawful business use contrary to clause 3(9) of that Lease. The sole issue before the FTT related to whether there was a breach of those and the covenants or conditions for the purposes of section 168 .

2. There was an issue of construction as to the meaning of the word “structure” which the FTT determined against the Applicant. Upper Tribunal Judge Cooke, in granting permission to appeal, considered that there was a realistic prospect of successfully appealing against the FTT’s construction of that word. She also considered that the FTT had failed to adequately explain its dismissal of the other breaches of covenant.

3. The grounds also assert inadequacy of reasoning and perversity.

4. In accordance with Judge Cooke’s grant of permission this appeal will be determined without there being a separate hearing in accordance with rule 46 of Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (the 2010 Rules).

5. There has been no response from the Respondent following the grant of permission. Consideration of the grounds The grounds generally

6. The FTT described the Applicant’s case which, in part it found to be made out, to be “at points compelling” but noted the “scattergun” approach to the presentation of the case and the limited evidence produced. These were factors the FTT was entitled to take into account when reaching its conclusions.

7. The FTT was entitled to limit the time spent on the case in accordance with the overriding objective in rule 3 of the First-tier Tribunal (Property Chamber) Rules 2013 (2013 Rules) and the criticisms of the time allocated to the case appear misplaced. Grounds of appeal to the UT Ground 1 – misinterpretation of schedule 6, regulation 15

8. The applicant correctly cites the leading case of Arnold v Britton . It is well established that the objective ascertainment of the intention of the parties to a legal instrument requires consideration of the background knowledge of the parties at the time it was entered into (see Arnold v Britton at paragraph 15). However, the background facts are not the only thing that have to be considered. The meaning of the words used has to be ascertained from documentary, factual and commercial context including: “…(i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions”.

9. As this ground points out, the FTT appears to have confused the word “Structure”, which is defined in clause 1 (vii) of the Lease as “…the main structure of the flats, the commercial units within the Development to include the foundations of external …” with the word “structure” in regulation 15 of schedule 6, which prevented the Respondent from placing any “structure of whatever nature” on the terrace of the demised premises. The use of the word “structure” there was used with a small “s” and clearly intended to apply the much wider definition set out in the grounds. By that definition, derived from the Oxford English Dictionary, a structure is a collection of “interconnected materials creating a functional construction” (see paragraph 9 of the application for permission to appeal to the UT at page 326 of the bundle). In addition, the FTT’s reasoning in this regard was inadequate.

10. The Lease prohibits the construction of a structure other than “tables chairs parasols and movable planters on any balcony or terrace included in the demise and to use the same only as an amenity area ancillary to the residential use of the demised premises” (see regulation 15 of schedule 6). Accordingly, the terrace appears to have been used for the construction of decking, i.e. the creation of a structure which would have been a breach of the covenant concerned- specifically clause 3 (10) and paragraph 15 of the sixth schedule. The fact that all or part of the decking was constructed by a predecessor in title was not relevant the question of whether or not there was a breach. Ground 2 – failure to give reasons

11. This is not sustainable as a separate ground but represents part of the inadequacy in the FTT’s decision which the UT is entitled to consider when weighing up the strength of the decision under consideration. Ground 3 – perverse finding contrary to the evidence

12. It is not necessary to consider whether the decision was “perverse” in the sense of “contrary to the result determined by the evidence” as opposed to inadequately reasoned or, in the case of Ground 1, based on a misinterpretation of the relevant clause.

13. Since no reasons were given by the FTT for rejecting the other alleged breaches it is necessary to consider afresh the relevant breaches in the paragraphs that follow. Judge Cooke ordered that this appeal be limited to a review. It is necessary to consider the original grounds rejected by the FTT and ask whether the evidence presented before the FTT justified that tribunal’s conclusions. The breaches alleged were raised in the original grounds of appeal to the FTT. The original grounds of appeal to the FTT Ground 4- Structural alterations without consent contrary to clause 3 (12) of the Lease

14. Neither the wooden decking, the artificial grass or the pebbles appear to have required structural alteration to the premises as defined by clause 3(12) of the Lease (see paragraph 9 above). However, the Appellant claimed in the application for permission (see paragraph 33 at page 329) that the interconnected decking required mechanical fixings and they required modifications which are themselves structural alterations.

15. No authority is cited for the proposition that mechanical fixings amount to structural alterations. The FTT’s consideration and reasons could have been fuller than they were in relation to this issue, although I have some sympathy with the FTT given the volume of detail provided. Nevertheless, overall, this was an interpretation of the relevant clause the FTT was entitled to come to. Ground 5- Insurance and nuisance contrary to clause 3 (9) of the Lease

16. The Appellant contends that the policy of insurance in place only allowed use under the building policy “as a private residence”. It is claimed that as it was AIRBNB use amounted to a commercial letting potentially “voiding cover”. The Appellant also contends that the storage of certain items and the installation of decking may also have affected the (Landlord’s) cover.

17. There is also an allegation of nuisance as a consequence the AIRBNB use (see paragraph 38 of the original application for permission to appeal at page 330 (UT 326)). This is said to arise from transient occupation of the flat increasing building traffic, administrative burden of monitoring compliance and affecting the storage and obstruction of fire safety equipment.

18. The FTT agreed with the Appellant that there had been a breach of the user and by implication accepted that that breach may have an impact on the insurance provided by the Landlord. However, the FTT appeared not to accept there was any evidence presented of nuisance.

19. Unfortunately, the FTT appears not to have dealt fully with the extent of this alleged breach but it pointed out (in paragraph 12 of its decision at 313 (UT 309)) that there was no evidence of nuisance by guests so as to affect the insurance policy.

20. The FTT was entitled to dismiss this alleged breach of covenant in so far as it is said to have extended beyond the restriction on user and consequential potential impact on the Landlord’s insurance but created an additional nuisance. This was insufficiently made out on the evidence. Ground 6: Clause 3 (13) – parting with possession

21. AIRBNB use was pursuant to a licence and therefore did not constitute a parting with possession for the purposes of the above clause, as the FTT correctly concluded (see paragraph 12 of the decision). Therefore, there appears to have been no error of law in the manner in which the FTT dealt with this alleged breach and it was entitled to conclude it did not amount to a breach. Conclusion

22. The appeal is therefore allowed. The Upper Tribunal finds that in addition to the covenants found by the FTT to have been breached, the prohibition on the placing of structures on the terrace of the demised premises in schedule 6, regulation 15 and the non-residential user in clause 3 (9) of the Lease affecting the Landlord’s insurance had been breached. The other breaches alleged, which were rejected by the FTT, stand. His Honour Judge Hanbury 1 December 2025 Amended to correct clerical errors pursuant to rule 53 of the 2010 Rules on 4 December 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.