Costs to get FTT decision on the terms of collective enfranchisement

[Lorimer]

We are in the middle of a Section 13 collective enfranchisement claim to purchase our freehold. The freeholder's counter notice stated that he wanted more money than we offered and also stated that we are not entitled to include the large communal garden to the side of the building in our enfranchisement claim because our leases do not give us any rights to it.

We were a little deflated by the inference that the freeholder would continue to own the large communal garden to the side of the building after we have enfranchised. There is room for 2x semi detached houses on the land!

The next step is making an application to the First Tier Tribunal to determine the terms that have not been agreed - such as the purchase price for the bits of the freehold that we are entitled to include in our enfranchisement. Before we make the application though, I wondered whether any of you have experience of having done this and what the costs are likely to be? I understand that at First Tier Tribunal we will have to bear our own costs and the freeholder will have to bear his own costs ...

[Tipper]

What does your solicitor say?

If you haven't got one on board then I would suggest an enfranchisement specialist solicitor be used as they will have been around this issue many times. Brethertons have a specialist department.

Have you used a specialist enfranchisement chartered valuer too? They too know all the arguments and how it's all calculated and will negotiate on your behalf, valuer to valuer.

We encountered initial stubbornness and stupidity from our head leaseholder. Whilst the freeholder accepted the enfranchisement the head leaseholder didn't want it to go ahead. We countered with specialist professionals and even had to threaten to go to tribunal. (We actually made the necessary FTT applications and that made them see sense!)

I think you'll find that you are enfranchising the whole freehold and not just the bits you live in particularly if there are no other residential units on the plot.

[Lorimer]

We have used a specialist solicitor with a valuer that they recommended and we have been given ball-park costs by them of between 3-4K to get the FTT to decide on the matters that have not been agreed e.g. the purchase price. I just wanted to check whether this figure was reasonable or not.

I think you'll find that you are enfranchising the whole freehold and not just the bits you live in particularly if there are no other residential units on the plot.

We have been advised by our specialist solicitor that the freeholder's argument about the large communal garden has merit and that we are not entitled to enfranchise it because our leases do not explicitly give us rights to use it. The authority they quoted was Cutter v Pry Ltd 2014.

[Gordon999]

This comment posted up by a law firm may help you :

https://www.forsters.co.uk/sites/def...20effect_0.pdf

[Lorimer]

And paragraphs 4 and 7 of this article by Landmark Chambers sets out the communal garden position even more clearly:

http://www.landmarkchambers.co.uk/us...Sargent%20.pdf

It has been confirmed to us that (either by accident or design) our leases do not grant us rights over the large communal garden to the side of the building. If we are to enfranchise, we must focus our efforts on only enfranchising the building in which our flats are situated. The freeholder has quoted us a ridiculously high price for the large communal garden to the side of the building - basically telling us that the legislation does not compel him to sell it to us anyway so he intends to keep it for himself. He has said that if we want to buy it from him, we will have to pay the open market value for it as a separate negotiation from the collective enfranchisement.

A number of leaseholders have lost heart on hearing this news. If the typical costs of going to the First Tier Tribunal to decide on the price to be paid for the bits of the freehold that we are entitled to enfranchise are prohibitive, this might just prove to be the death knell on the collective enfranchisement claim.

So does anyone have any idea whether 3-4K is accurate?

[Gordon999]

Do you and other leaseholders own a leasehold property under the same freehold title as the communal gardens ? . How long many years have you been pay service charges towards maintenance of the communal gardens ? If you have been paying maintenance costs ( grass cutting etc ) for the communal gardens , you must have a claim for it to be apurtinant land which is part of the freehold estate .

Does the communal gardens have direct access to the main road and gardens are within the boundary fence of the freehold.estate ? Can the communal gardens be claimed as agricultural land and bought at price level for agricultural land ?

[Lorimer]

1. The garden is on the same freehold title as the building in which the flats are located.
2. Leaseholders have paid grounds maintenance monies over the course of c.20 years for the upkeep of the garden.

We have been advised that the garden cannot be classed as appurtenant land because the definition of this is land that a leaseholder is entitled to use in addition to his/her flat (such as a demised garage or store). Nor can the garden be classed additional freehold because this would be land that a leaseholder is entitled to use in common with others. None of the leases are demised any portion of the garden and none of the leases contain rights to use the garden. Under the circumstances, the garden was never 'communal' in the legal sense of the word. I merely used the term communal to indicate that everyone is capable of accessing the garden because it lies to the side of the building in which the flats are located.

And yes, the garden is directly accessible from the main road. The freeholder will not be persuaded to consider the garden as agricultural land. The freeholder considers the garden to be development land as there is a history of infill developments gaining planning approval in the area. There is enough room for 2x semi detached houses (if planning approval could be obtained) or 6x car parking spaces. Both of these sell for a premium in the area so we cannot afford to buy the garden at those prices even if the freeholder were inclined to sell it to us separately - which he is not.