Singh v Rainbow Court Townhouses Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath,Lord Reed,Lord Kerr,Lord Hughes,Lady Black |
| Judgment Date | 19 July 2018 |
| Neutral Citation | [2018] UKPC 19 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0100 of 2016,Trinity Term Privy Council Appeal No 0100 of 2016 |
| Date | 19 July 2018 |
Lord Reed
Lord Kerr
Lord Carnwath
Lord Hughes
Lady Black
Trinity Term
[2018] UKPC 19
Privy Council Appeal No 0100 of 2016
The Court of Appeal
Real Property - Landlord and tenant — Lease — Breach of covenants — Whether lessor had transferred interest in property to a company to assume all rights and duties for townhouses.
| Appellant | Respondent |
| Robert Strang | Brent Hallpike |
| Kiel Taklalsingh | Owen Roach |
| (Instructed by Charles Russell Speechlys LLP) | (Instructed by Axiom Stone) |
(with whom Lord Reed, Lord Kerr, Lord Hughes and Lady Black agree)
This appeal concerns the management of a development of townhouses known as Rainbow Court in the area of Sunrise Park, Trincity. The appellant, Shirlanne Sacha Singh, is the owner of unit 18 on which she is alleged to have carried out work without approval as required by her lease. The main issue is whether she established an arguable case that the management company acquiesced in the work or otherwise deprived itself of the right to injunctive relief.
The legal background
Home Construction Ltd (“the lessor”) was the developer of Rainbow Court and is the lessor of the townhouses. The appellant is the owner of unit 18, under a lease granted to her predecessor on 6 June 2005 for a term of 199 years. Recital C of the lease indicated that the leaseholds within the development were being sold under a building scheme, in which the covenants would be mutually enforceable.
The respondent (“the company”) is a company formed for the purpose of managing the development, and is described in the lease as the Townhouse Management Company. By a deed dated 8 March 2012 the lessor appointed the company as its agent, among other things, to fulfil its obligations under the leases of the townhouses and enforce their terms, but did not transfer any interest in the property which remained vested in the lessor. (Although the lease had envisaged that the lessor would transfer certain “reserved property” to a management company, this was never done.)
Under the Fifth Schedule to the lease, the lessee covenanted with the lessor (para 9) not to make any alterations or additions in or on the property without first obtaining the lessor's written approval, and (para 15(i)) to comply with any reasonable rules and regulations of the company. The company produced a document called the “Townhouse Community Guidelines” (“the guidelines”), which, among other things, required that before making alterations to townhouses, lessees should seek the company's written approval; and set out certain “guidelines for maintaining the architectural standards for your Townhouse”.
There is nothing in the document, or the papers before the Board, to indicate in terms its precise legal status or when and how it was adopted or made known to the individual owners. Under article XI “General Administrative Guidelines” it is stated:
“Notwithstanding any of the stated provisions in our townhouse scheme guidelines, the board of the management company and/or the landlord shall from time to time, as it deems necessary, make or amend these rules and regulations for the neighbourhood development scheme which shall become effective if and when a copy of the regulations is made available in print or electronic means to each unit owner.
The board and/or the landlord shall have the right to enforce such obligations, or breach of any rule regulation or restriction constituting a breach of these declarations.”
This suggests that they were seen as “rules and regulations” enforceable under para 15(i), but subject to copies being made available to individual owners. As will be seen, the appellant's case is that she was only supplied with a copy on 5 November 2014, after she had started the works.
The appellant's works
On or about 3 November 2014 the appellant started to carry out works to the property. She had not sought or obtained the company's consent, but, according to her defence, she had orally informed two officers on or about 26 October of her intention to carry out works. On 18 November 2014 the company's board wrote to her referring to the “exterior construction” which had been taking place at the property:
“Verbal communication was made between yourself and one member of this board. There has been no formal request to the Architectural Control Committee/board of directors, as required in the Townhouse Community Guidelines (article VI Architectural Control Guidelines. pp 7–8) prior to the start of construction.”
The letter continued that “of concern to the board also” was that the appellant had given a verbal timeframe of one week for the works but construction was now in its second week, and that the works were causing disturbance and nuisance to other tenants. It asked the appellant immediately to set out the timeframe for completion of the work, to say what work was to be carried out in the common areas, and to agree to carry out work only within certain hours. It concluded: “We look forward to a peaceful resolution to this situation”.
The appellant replied by letter dated 20 November 2014. She asserted (inter alia) that the guidelines were not valid in law, that the works were consistent with other works to townhouses within the development to which no objection had been taken by the board, and that in any event the works had been agreed by the board “through the verbal assurances of its agent(s)”, or objections had been waived. She added that works were substantially complete, and that finishing them would not cause dust or disturbance. The letter concluded:
“Since the date of your letter I have as a purely cosmetic measure designed to enhance the property erected four columns to the front of my property which do not in any way alter the structure of my property and which my attorneys have advised cannot reasonably be objected to for the reasons mentioned in the second paragraph above.”
On 25 November 2014 the company wrote repeating the complaints as to carrying out of works without consent and resulting nuisance, demanding that she submit a written request for approval of the works, and threatening legal proceedings.
The proceedings
On 28 November 2014 the company issued the present claim for declarations, injunctions and damages. An ex parte interim injunction granted by Pemberton J on 2 December 2014 was discharged by the judge on the appellant's application on 7 January 2015 on the ground that it had become otiose following completion of the work, but she ordered the appellant to pay the company's costs.
The pleadings
The company's case was set out in detail in a re-amended statement of case dated 23 January 2015. Under the heading “Particulars of the claimant's mandate and responsibility” (para 4), it asserted (inter alia) that the lessor had transferred its remaining interests in the townhouses to the company to assume all rights and duties of the lessor for the townhouses. It referred to the relevant covenants in the Fifth Schedule to the lease, including the requirement for written approval for alterations or additions, and to the relevant provisions of the guidelines. It gave particulars of “unauthorised usage and/or illegal construction works”. The list included allegations both of specific works and of various forms of nuisance or disturbance. The offending works were described as follows in para 8:
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“(b) construction/modification to the external part of unit 18 in the front and in the back of the unit involved in the erection of four pillars/columns which has completely changed the appearance of building in that there is no uniformed appearance; …
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(g) removal of the decorative plants placed between the car ports and concretisation of the divide between car ports at units 17 and 19 (both bounding car port for unit 18);
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(h) changing of the doors from the standard and approved door for all of the units at the Townhouses to non-uniform doors;
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(i) installation of a window to the kitchen;
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(j) removal of a wall at the rear patio and installation of a second double door at the rear of the property;
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(k) installation of a step in the common walk way which is also tiled and which has fundamentally changed the otherwise uniformed appearance of the raw concrete pathway throughout the compound;
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(o) other internal construction works inclusive of adding rooms and changing the layout as approved.”
It was also alleged that “as a result of the breach of covenants and guidelines” by the appellant, the company had been put to expense or suffered loss, of which particulars were given as follows:
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“(i) Cost to repaint gate —$60.00
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(ii) Cost of decorative plants being destroyed —$916.25
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(iii) Cost of roof repairs —to be quantified.”
The relief sought included claims for declarations in respect of the alleged breaches, and mandatory injunctions in these terms:
Finally there were claims for special damages of $976.25 “plus additional costs for repair of roof”, and “general damages”.
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“(c) … to remove the structure/s on the external part of unit No 18 that are not in conformity with the said guidelines and/or are not in conformity with the Townhouses layout as approved and in existence and/or changed the uniform appearance of the Townhouses, namely:
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i. The tiled over are[a] of the common walk way;
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ii. The erected pillars (columns) in the front and the back of the property;
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iii. The installed electrical fixtures which has made changes to the front of the erected pillars in which brightly coloured decorative lights are on nightly;
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iv. The step in the common walk way;
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iv. The window to the kitchen;
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v. The doors at the front and back of the property which has completely changed the appearance of the building;
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vii. The concretisation of the divide...
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