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.



  • leaseholder64
    replied
    Common land is not jointly owned, so your consent is not needed. This is about easements. You have easements to use the common land in certain ways. If those easements are being frustrated, you may have a right to compensation or to a limited level of direct action (you may be able to physically move obstructing vehicles just sufficiently to allow you to drive past).

    Demised parking spaces are different, but you issue appears to be with the driveway.

    Leave a comment:


  • noname
    replied
    Originally posted by sgclacy View Post
    if you look at the freehold title and title plan - downloadable from the land registry web site if the title plan shows little boxes with numbers in them then it is demised and cannot be altered or varied without the lessees consent
    In post 3, 7 & 9 i state parking spaces are demised. - But no one was listening
    And of course i have the estate plan showing 3 of the spaces in question as demised, and numbered, but prior to the changes, which are not being recorded,

    Where as 3 cars parked in their respective places, according to the original plans, the area now used can squeeze in 6 cars. Therefore the common ground of the drive has been "Given" to leaseholders for free.
    The small front garden ( along the front wall ) is the width of 6 cars, and small garden reduced by half, so cars have moved three quarters forward as well.

    I did not give my consent to give away for free any common ground.

    Thanks sgclacy

    Leave a comment:


  • sgclacy
    replied

    if you look at the freehold title and title plan - downloadable from the land registry web site if the title plan shows little boxes with numbers in them then it is demised and cannot be altered or varied without the lessees consent

    If the area is not specifically demised the freeholder can reduce or take away areas of ground which lessees have right if way over but not so access and egress is restricted and may we’ll face a claim for damages for the degrogation of such rights.

    Invariably when a block block is further developed at some stage some area where lessee have rights of way this can be compromised and a development cannot be blocked because a small area of common ground. of say a few square meters is lost

    Leave a comment:


  • vmart
    replied
    Dear Leaseholder64
    Thank you for your reply. I just thought you might remember the case.

    Leave a comment:


  • leaseholder64
    replied
    That would mean trawling very old postings to work out what the original context was. You have more incentive to do that than I do. I do seem to be remember it was by someone who raised large numbers of threads on it, but I can't remember who that was.

    Leave a comment:


  • vmart
    replied
    Dear Leaseholder64

    Earlier in this thread you wrote:

    "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."

    Could you please signpost me to the case you mentioned.

    Leave a comment:


  • leaseholder64
    replied
    I think it is all those twho have an easement allowing them to use it, which is not necessarily the same as all the leaseholders.

    If you have an easement over the garden, you could set up your deck chair in a place where the easement allows that, but doesn't allow motor vehicles, and do so at a time when trespass is likely.

    Unfortunately, cars are so important to people these days, that I imagine there is a lot of pressure to sacrifice green space to car parking. That's what has happened generally to front gardens, in London. As noted in the Parliament thread, leaseholder run companies and the law tend to be strangers.

    If you haven't done so already, you should obtain the original planning conditions from the council, and see if they have been breached. In theory you have ten years for condition breaches.

    Leave a comment:


  • noname
    replied
    17 month delay in replying. There are no licences have been given, I know this for a fact., and no lease amendments have taken place.
    Also the demised parking spaces are clearly shown on every flat lease for last 40 years.
    The "new spaces" are demised to the flat owners, as far as the Directors and leaseholders are concerned, without changing the lease via Deed of variation.
    The directors always refuse to modify the lease if needed, so they don't have to fork out for solicitors, or revised plans.

    We could fit 3 cars ( one flat ; One parking space ) along the front wall with space at one end near the entrance to allow easy access as one has to turn right when entering.


    Number of cars able to park has now doubled, made by stealing part of the common driveway, and part of the garden at the other end, with slight inconvenience turning right if the tenant ( renter ) has a large car.
    The front garden was one large car length from the wall, but now they have removed half of that small garden area as well, which is common ground also.

    As I said, can they give away parts of the common use driveway and small front grass area, when I objected to this alteration.
    I thought all leaseholders had to agree to give away common ground and garden to leaseholders and to be sold to the leaseholders, and that leases had to be changed to reflect the changes.

    Leave a comment:


  • leaseholder64
    replied
    The spaces are not being moved. A non-demised, additional licence is being given for adjacent space.

    Leave a comment:


  • noname
    replied
    BUMP.
    Any remarks, suggestions as to my findings above, as to if I should go for an injunction.

    Leave a comment:


  • noname
    replied
    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.

    Leave a comment:


  • noname
    replied
    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.

    Leave a comment:


  • noname
    replied
    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.

    Leave a comment:


  • leaseholder64
    replied
    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.

    Leave a comment:

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