Freeholder giving away, for free, part of the garden, to a leaseholder.

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    Freeholder giving away, for free, part of the garden, to a leaseholder.

    We have a driveway, flanked both sides with grass, that is common ground.
    I have the right to walk accross or sit on it and read a paper.

    The freeholder wants to extend the parking area by removing part of one side of the garden.
    In effect, they will be giving more space to the cars to park, but mainly to one leaseholder, who is at the end of the spaces.

    A. I have stated that they cannot give away common land without selling it to the leaseholder,
    B. and the shareholders having a financial reward for doing so, and losing part of the garden they were entitled to use,
    C. and that the leases must be changed to show the reduced common area, and leases changed at the cost to the freeholder.
    D. It would also expand the demised original footprint parking spaces for the other leaseholders, for which they too would have to purchace / lease the extra width.

    The freeholder is a lessee run Managing company, and we all know this is the worst posible combination.

    Thoughts on how to stop this, especially as I have written to the Directors, and they say they are not going to charge anyone, nor change the leases.
    The drive is due to be started late next month.



    #2
    It is likely to be a condition of original planning consent that no such changes are made.

    On the other hand, the company articles may forbid payment to shareholders, and there may be tax implications if money changes hands.

    There was a recent thread, albeit involving an external freeholder, where an informal arrangement to convert garden to car park came back to bite when the freeholder started opening it to the public, with associated security problems. The original planning breach was too old to enforce, and change from public to private parking was not considered significant from a planning point of view.

    Comment


      #3
      I have followed that thread, but is not connected with my problem.
      They had previous freeholder and leaseholder permision to remove the garden and make it into a car park for residents only.

      My M.C. do not have my permission to deprive me of my right to use the garden, as shown on all leases, nor take away part of the garden away from me,, and the area ( size ) I have for my quiet enjoyment.. Lease shows the area I can use, with a scale so I can measure the garden area I am legally entitled to have use of.

      Comment


        #4
        addition to above.
        I was thinking of an injunction to stop them, therefore I need definite answers to a,b,c + d, before I proceed.

        Comment


          #5
          Your original posting said that the land land in question was common, not demised to you. Only if it were demised to you would quiet enjoyment be an issue. I think we need the actual wording of the lease.

          If it is demised to you, they cannot re-allocate it unilaterally, but if there is only an easement, the exact terms of that easement may matter, e.g. the easement in the other case lapsed when the land ceased to be a garden, and, from the point of view of the lease, I believe the freeholder didn't need permission to convert it to a car park, even though that is not what actual happened in that case.

          Comment


            #6
            It sounds as if common area is remaining common area, but with a changed purpose. Parking instead of reading.

            Does the lease map out the area and make a specific purpose clear.

            So it is not clear from what you say that there is any "giving away free". But it may be an issue if lease says it has to be there as garden.

            What would stop you parking and walking in the newly tarred area?

            Comment


              #7
              Sorry for delay, as I got no email informing me I had a reply to above post.

              The lease shows a front garden area to the sides and front of the front boundary wall.

              The lease states. ( abridged )
              Full right and liberty for the lessee to to use the forecourt and gardens coloured xx, on plan number xxx, for the purpose of quiet enjoyment -- no ball games.

              There are paving slabs to the front of the building, which are in excelent condition ( 2 slabs wide ) and the freeholder wants to remove these and tarmac over these. No reason for doing this, and is a "fad" by the directors, which will increase the cost resurfishing of the drive, and is an on cost that is not required, as the current drive just needs resurfishing.

              Lease shows current parking spaces for 3 cars, but you can force 5 cars in there ( bang doors to get out of car.).
              The spaces are demised spaces.
              Therefore to increase the spaces, the end one is going to be given part of the side garden, for free. Probably 3 foot, ( 1 m ).and at the other end, part of the "common" drive that is left ( no parking spaces ) is going to be given free to that end on.
              The cars inbetween are going to have their demised parking space increased, for free.

              Freeholder is giving away drive and common garden to leasholders without any financial commitment on the leaseholders.

              If you want to increase the area of your flat ( e.g. extension on the back ) the freeholder asks for money to increase the foot print, and gets 100 % of the leaseholders agreeing to lose the rear garden area it takes up.

              The same should apply to the "Demised car spaces" and freeholder asks for money to increase the foot print, and gets 100 % of the leaseholders agreeing to lose the front garden area it takes up.

              The freeholder is NOT going to change the leases to show increase in footprint of the Demised car spaces, nor the reducton of the side garden area, nor the reduction in common driveway.

              Giving away for free, common garden and driveway should not be permmited ?
              ( I am a shareholder )

              Thanks
              Last edited by noname; 26-01-2018, 14:17 PM. Reason: first line added

              Comment


                #8
                "quiet enjoyment" seems a poor choice of words. It is not really a purpose, but a description of how you can use it for the intended purpose. In leases, it generally means something like: "use it for its intended purposes without interference by the landlord".

                I'd suggest setting up your deck chair there, in the afternoon rush hour, and seeing if the freeholder tries to move you. If they do, they are probably in breach of the easement.

                Unfortunately, on the clauses so far presented, only the freeholder can take action against other leaseholders parking there.

                I don't see anything giving you access to the exclusion of other uses, and that quiet enjoyment term is so vague as to allow parking cars there.

                I'm afraid this is all down to the worship of the great god private motor car, and of course, the problems associated with leaseholder run companies. The great god motor car also has temples in what used to be the front gardens in most of suburban London, and regular sacrifices of the council verges seem to be made to them. I don't like it, but the car religion doesn't seem to have peaked yet.

                I'd say your best hope is that you can get the local planning authority to intervene. Otherwise, you need to find enough like-minded shareholders to stage a coup.

                Comment


                  #9
                  Originally posted by leaseholder64 View Post
                  I'd suggest setting up your deck chair there, in the afternoon rush hour, and seeing if the freeholder tries to move you. If they do, they are probably in breach of the easement.
                  The freeholders are the leaseholders and the number of directors outnumber the none directors, therefore none directors can ever win.

                  Originally posted by leaseholder64 View Post
                  Setting up your deck chair.
                  The Directors don't live there and will never see me.
                  Even if they did see me, they would never remove anyone. They would just say, Silly arse, leave him there, it is a common garden today.

                  Originally posted by leaseholder64 View Post
                  Unfortunately, on the clauses so far presented, only the freeholder can take action against other leaseholders parking there.
                  The leaseholders can sue the freeholder for not upholding the lease.

                  I don't think you "get it"
                  it is giving away for free, common land to at least 2 leaseholders, one at each end of the increase in car spaces for no fee or change in the leases,
                  "Other" leaseholders are not parking there.

                  Originally posted by leaseholder64 View Post
                  I'd say your best hope is that you can get the local planning authority to intervene.
                  What, for increasing car parking spaces on private ground ?

                  Originally posted by leaseholder64 View Post
                  Otherwise, you need to find enough like-minded shareholders to stage a coup.
                  Directors outnumber the none directors.


                  Comment


                    #10
                    The way you describe it it does sound as if something is fishy. The parking ares are demised, and those specific demised parking areas are increasing in size at the expense of common areas.

                    But nothing is being documented. As LH64 says stick up your deckchair and see what happens.

                    Do you have (non demised) parking access?

                    What would actually stop you from parking in the newly designed places which are not actually demised?

                    Do you have your own private area of garden no matter how small. You could ask for it to be extended by the precise amount by which the "demised" parking was extended.

                    But to be clear -- when you say

                    "The spaces are demised spaces."

                    do you mean that they are designated as parking or do you mean that they are OWNED by specific named flats and shown as such (with mapping) in the lease. In other words are you using the word demised correctly.

                    Comment


                      #11
                      Please quote the clause in the lease where the freeholder covenants not to allow cars to park in the garden.

                      At the best you have them as party to obstructing your rights to an easement, but the wording of that easement, in my view, is so poorly drafted that there is no guarantee that the judge will consider that your rights are being infringed.

                      Whilst I think they are morally wrong to do what they have done, I don't think it is at all clear that they have breached your rights under the lease

                      You may have to wait until Monday now, to get a full range of alternative view, as the forum goes quiet at weekends.

                      If you think that the lease gives you a right not to have cars parked on the land, research "interference with easements".

                      Incidentally, why do you think the majority of the members of the company are against you? Maybe there was a minority vote during the board decision.

                      I still think investigating planning breaches would be an easier approach.

                      Comment


                        #12
                        Will measure the lease plans, and come back Monday.

                        Prior to Monday,
                        Yes, each flat has a demised parking space designated and belonging to a flat, and shown on each lease. OWNED by specific named flats.
                        There are no none demised parking spaces.

                        Comment


                          #13
                          Originally posted by leaseholder64 View Post
                          Incidentally, why do you think the majority of the members of the company are against you? Maybe there was a minority vote during the board decision.
                          As in 9
                          Directors outnumber the none directors.
                          The directors let their flats and want more room at no cost to them.
                          No changes to the leases, no solicitor fees.
                          Removing a bit of the common garden and giving it away for free to leaseholders who are directors.

                          Comment


                            #14
                            I may have found the answer.
                            To recap, 2 parts of the front garden are being reduced ( common area )
                            One part of the common drive is being given for free to a leaseholder.

                            Botom of Page one of the lease states,
                            The Lessor herby demises all the flat etc
                            and the parking area coloured xxx on plan number yyy.

                            Therefore the current parking spaces are demised, which forbids the freeholder from moving them, extending them and also regarding giving away easment across garden and rest of the driveway, as per high court ruling below

                            Further on the Lease says.
                            To use the parking space shown --------- for the purpose of parking private cars only and not for the parking of any commercial vehiclles.

                            https://www.lexology.com/library/det...6-e287bdf07a25
                            ..Could the developer move the spaces?

                            The developer tried to argue that it had a right to change the designated parking spaces. The court rejected this. A burdened landowner does not in general have the unilateral right to extinguish an easement over one area of land simply by providing an equivalent easement somewhere else. An easement may be granted on terms which expressly permit the burdened landowner to vary the space which is allocated from time to time, or for example in the context of a right of way to vary the route of the easement. The easement in this case had not however been drafted in that way, and no right to vary the space would be implied.

                            ......................................


                            n Kettel v Bloomfold, the claimants were tenants of eight long-leasehold residential flats in a development in the East End of London. Each flat had been granted the right to use a designated car parking space on the development.

                            The claimants had argued that their sole right to use each space amounted to exclusive possession and, as such, was a demise.
                            The absence of express wording in the leases to allow the landlord to move the spaces meant that the spaces could not be moved – there was no basis for implying such a right.
                            The defendant had argued that damages would be an adequate remedy for the claimants, as they were being offered alternative spaces nearby and their loss was therefore not significant. The judge did not agree; he decided that an injunction was an appropriate award for the claimants in this case, in order to prevent the defendant achieving an “expropriation” of the claimant’s property rights. The development proposed by the defendant was therefore blocked.



                            Any remarks would be apreciated.

                            Thanks.

                            Comment


                              #15
                              BUMP.
                              Any remarks, suggestions as to my findings above, as to if I should go for an injunction.

                              Comment

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