Did a licence to alter amount to an implied waiver?

In Faidi v Elliot Corporation ([2012] EWCA Civ 287, CA (Eng)) F and E were tenants of flats in the same block. F’s flat was below E’s flat. The leases in the block contained a covenant to lay carpet and underlay on the floors (presumably as a means of sound insulation). This covenant was made by each tenant with the landlord ‘and with and for the benefit of the Flat Owners.’ The landlord covenanted to enforce the lease covenants on request provided the tenant making the request paid the costs of the enforcement action. E’s predecessor in title got the landlord’s consent to alter the flat by installing underfloor heating and laying oak flooring. The Court of Appeal held that this amounted to a waiver of the covenant concerning carpet and underlay because it was obvious to all that there was no point in carrying out these expensive works and then laying carpet. They must have intended to waive the covenant. The Court of Appeal urged neighbours to settle their disputes through mediation rather than litigation.

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