Peter Calnan v Stack House Residents (Oxted) Limited

A covenant requiring sufficient underfelt and carpets to minimise sound induction imposes both a furnishing requirement and an outcome requirement. The court must ask whether the relevant floors have been furnished with carpets and underfelt, and whether what has been provided is sufficient to minimise sound transmission. Modern materials may satisfy the covenant where they perform the relevant function. A synthetic acoustic barrier beneath flooring is not a carpet or underfelt, but carpet alone may suffice if it achieves the required sound attenuation. Once a tenant has installed carpet, the landlord bears the burden of proving that further underlay or carpeting is needed.

The appellant leased a flat subject to a covenant requiring all floors, except kitchen and bathroom floors, to be furnished with sufficient underfelt and carpets to minimise sound induction. He installed vinyl flooring over an acoustic barrier without carpet, then laid wall-to-wall carpet in the relevant areas in August 2023.

The First-tier Tribunal determined under section 168 of the Commonhold and Leasehold Reform Act 2002 that the appellant was in breach, without specifying the period or nature of the breach. The appeal concerned the proper construction of the covenant, the effect of the acoustic barrier and later carpets and rugs, the burden of proof, and the adequacy of the FTT’s determination.

1. Appeal allowed. The FTT’s determination was set aside as too broad and imprecise.
2. The covenant’s meaning was fixed when it was entered into. It required carpets and underfelt sufficient to achieve its stated purpose, namely minimising sound induction. Sound attenuation was therefore relevant and critical to determining what provision was sufficient.
3. The covenant required the court to ask two questions: whether the tenant had furnished all relevant floors with carpets and underfelt, and whether those materials were sufficient to minimise sound transmission. Modern synthetic underlay could constitute underfelt. The acoustic barrier installed beneath the flooring could not, because it was not immediately beneath a carpet. Nor was vinyl flooring a carpet.
4. The covenant did not require wall-to-wall carpeting, fixed carpeting, or both carpet and underfelt in every case. Carpet alone could satisfy the covenant if it achieved the required sound attenuation. Alternatively, a lower layer of carpet could perform the function of underfelt for rugs placed above it.
5. The appellant was in breach from completion of the works until 29 August 2023, because the dining area, hall and entrance lobby were uncarpeted. After carpet had been installed, the landlord had to prove that further carpeting or underlay was needed. It produced no evidence that additional sound attenuation could have been achieved. The breach was therefore remedied by 29 August 2023 and was not continuing.
6. An application under section 168 requires a sufficiently specific determination of the breach to support any subsequent section 146 notice and forfeiture proceedings. The substituted determination stated the relevant areas and period: breach existed between completion of the works at the end of 2019 and 29 August 2023, but not thereafter.

• Upper Tribunal (Lands Chamber): allowed the appeal against the First-tier Tribunal’s determination dated 16 December 2024. The determination was set aside and replaced with a finding of breach between completion of the works and 29 August 2023, with no continuing breach thereafter.