Consent for alterations unreasonably withheld

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    Consent for alterations unreasonably withheld

    Hi, I hope someone can help advise me.
    I am a leaseholder and in July applied to the managing directors for consent to remove part of a supporting wall between my lounge and dining room which would greatly improve my property. The removal of part of the wall doesn't affect any other property but it is a supporting wall.
    I supplied the directors with a surveyors report, plans and answered all their questions. It took the directors three months to reply to me and their response was 'unless required to do so by Law they are not inclined to give consent for the removal of the wall within the flat'. They did not give any other reason.
    I have written to them to request they reconsider, however, if they still don't grant permission can I take them to court for a resolution. BTW the flat hasn't been decorated or updated since 1970.
    If I can go to court would you know what form I need to apply, what process do I need to follow and would it be county court?
    Thank you, in advance, for any advice.
    SEE LESS

    #2
    Please quote in full the provisions in your lease relating to the making of alterations.

    Comment


      #3
      Fiddling with supporting walls can always be reasonably refused. Or perhaps you might consider putting £5 million into an escrow account and leaving it there for 50 years to cover any eventualities.

      Who do you think will pay if something goes wrong and you walk away? The fact that you might have surveys indicating that it is likely to be safe to do is immaterial.

      Comment


        #4
        The legal ownership of the property belongs to the freeholder.

        If you are the leaseholder, you are only a "long term rental tenant" and you only have rights to replace minor fixtures and fittings inside the flat. You don't have any legal right to remove supporting walls or weaken the structure.

        Comment


          #5
          Originally posted by Gordon999 View Post
          The legal ownership of the property belongs to the freeholder.

          If you are the leaseholder, you are only a "long term rental tenant" and you only have rights to replace minor fixtures and fittings inside the flat. You don't have any legal right to remove supporting walls or weaken the structure.
          That's not true. You have a right to "improve" it unless the lease says otherwise, and if the lease requires consent to be given, then that is implicitly not to be unreasonably refused.

          Comment


            #6
            Thank you for your replies but I'm still unsure if I can make the alterations.
            my lease says 'Not to make any alterations in the flat without the approval in writing of the Landlord to the plans and specifications thereof and to make all such alterations in accordance with such plans. The tenant shall at his own expense in all respects obtain all licences approval of plan permissions and other things necessary for the carrying out of such alterations and comply with the bye laws and regulations and other matters prescribed by any authority either generally or in respect of the specific works involved in such alterations.'
            This seems to allow alterations so if I applied to the courts might they approve the works? What court form would I need to complete?

            Thank you again in advance for any advice.

            Comment


              #7
              Not to make any alterations in the flat without approval.

              There is a difference between moving baths, adding showers, and removing a supporting wall.
              Too many tales of woe years after the removal of a supporting wall or most of a supporting wall ( after strengthening the aperture ) of cracks appearing in flats above and below.
              The cracks appear in plaster years after the brickwork has moved.( slowly over time )

              So you sell up, and settlement is found to require substantial rectification. Making good mainly plaster in flats, and who pays for it ? You have long gone, no trace of you, and the leaseholders combined have to pay to refurbish.

              Where I look after, it would be an instant refusal to remove / modify a structural wall, due to many documented problems that can and do occur many, many years later.

              The duty of a Director / Company Secretary is to protect everyone's interest and safety,
              ​​​​​​​EVEN when all current leaseholders are dead, and the future leaseholders are not encumbered with settlement that rears it's ugly head in 50 / 100 years time.

              collapse-1.jpg

              ​​​​​​​

              Comment


                #8
                The clause says that no alterations are to be made without consent. That means that section 19(2) of the Landlord and Tenant Act 1927 applies. It says:

                In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without a licence or consent, such covenant condition or agreement shall be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed.

                The provision requires that consent must not be unreasonably withheld. At this stage it can be said that consent is being unreasonably withheld as you have had a response which says they will not not make a decision unless required to and, apart from that, they took three months to reply, which is unacceptable. It is too early to be contemplating proceedings. Write back as follows:

                Thank you for your letter of...

                The law does not require you to give consent; it does however require you not to unreasonably withhold consent - see section 19(2) of the Landlord and Tenant Act 1927. My application is in order as I have supplied plans and a surveyor's report and have answered all your questions. Accordingly, you are required to do one of the following:

                (a) approve the plans;

                (b) approve the plans subject to reasonable conditions;

                (c) reject the plans setting out your reasons for rejection.

                I require a response with ten working days, failing which I shall make an application to the court for (a) a declaration that consent has been unreasonably withheld, (b) damages and (c) costs.

                Comment


                  #9
                  It is perfectly possible to remove load-bearing walls so long as the work is done properly. Accordingly, where the lease has a qualified prohibition against making alterations permission to remove a load-bearing wall cannot be refused out of hand. If a landlord does not want load-bearing walls removed he can so provide. If he does not so provide he must give an application proper consideration.

                  Comment


                    #10
                    The freeholder answers properly as described above and then quite reasonably tells you to get stuffed. Unless of course you can provide long-lasting insurance indemnity, including indemnity against the structural surveyor's insurance not paying out or being no longer in effect -- or cash in escrow sufficient to reinstate the entire building. Your failure to do that and consequent refusal does not constitute "refusal out of hand".

                    Yes it is possible to remove load bearing walls - but the person who does that must bear the potential consequences and guarantee that he is able to do so. An incorrect calculation by a structural engineer or some statistical quirk could otherwise lead to everyone in the building having their asset written off - or the freeholder might be obliged to rebuild the entire building out of his own pocket. The building wouldn't generally be insured against the result of the consequences of ill advised structural work (now or in 50 years from now) - and the fact that anything bad does happen is near proof that the work should not have been carried out in the first place.

                    The issue is not whether you can do the work, but who should bear the risk.

                    There is a long history of owners removing structural walls, thinking that it is OK (and having idiot engineers thinking it is OK too) -- and causing massive damage to property and risk to life. Ram sent a nice photo.

                    Frankly if I were considering purchasing a flat in a building where the freeholder had provided (or was continuing to provide) willy nilly permission to do structural alterations, I would walk away very rapidly. This means that the value of all flats in the building will decline.

                    Even when you have structural engineering reports, and assuming that these are correct (they are not always) that does not mean that construction will be carried out to an appropriate standard.

                    Comment


                      #11
                      Thank you very much for your comments and advice.
                      If I do get permission I will be using a reputable contractor as I want to improve my property and do things properly the alterations stand the test of time.
                      I have just sent an email, as outlined by, Lawcruncher. Hopefully, I will receive a favourable response, if I don't could you tell me if I apply to the County Court for a decision and which application form do I use?
                      I really appreciate your help with this issue

                      Comment


                        #12
                        The freeholder has in no way answered properly. For a start, taking taking three months to come up with "unless required to do so by Law they are not inclined to give consent for the removal of the wall within the flat" is unacceptable; they could have said that by return of post.

                        Submitting adequate plans and a surveyor's report is sufficient to get the ball rolling. There is no requirement on the tenant to suggest conditions - that is for the landlord.

                        The request is perfectly reasonable. First, removing load-bearing walls is not that unusual. Local authorities regularly grant consent for load-bearing walls to be removed. Secondly, the lease envisages the possibility of alterations to the structure. The landlord could easily have provided for an absolute prohibition against structural (or indeed any) alterations. If landlords use clauses clearly designed to prevent one thing to prevent something they do not like they failed to provide for, they have to accept it if the drafting goes against them.

                        Proposed structural alterations are naturally a cause for concern and a landlord is entitled to be satisfied that the proposal will not prejudice the structural integrity of the building. However, if it is shown that the proposals are sound, consent cannot be refused on the grounds that the work may not be properly carried out. If that approach was taken by everyone, nothing would get built.

                        A landlord can impose reasonable conditions to ensure that the work is carried out properly, but I doubt he can insist that the tenant guarantees the work indefinitely. Developers do not give such guarantees, so why should tenants?

                        Comment


                          #13
                          Originally posted by Lawcruncher View Post
                          A landlord can impose reasonable conditions to ensure that the work is carried out properly, but I doubt he can insist that the tenant guarantees the work indefinitely. Developers do not give such guarantees, so why should tenants?
                          Because there is obviously a massive difference between works carried out for a the sole consumer of the services by a developer, and the situation here. In the first instance the individual for whom the work is carried out bears the risk before and after expiry of any guarantee. Here the risk is not borne by the beneficiary of the works but by third parties (the freeholder and other lessees).

                          Comment


                            #14
                            Please could you give me some further advice as I wrote back to the directors as suggested above and asking them to provide a reply within 10 days, it's now been two weeks and I haven't heard a thing. I did send an email yesterday chasing a reply but they still haven't responded.
                            Should my next step be to apply to the court for resolution? If so, do I go to the County Court? And which form should I use to submit my question?

                            Comment


                              #15
                              You have now come to the point where you need to decide if you are going to risk money. You also need to decide if you are going to go it alone or instruct a lawyer. Getting at least some professional advice from someone who has the whole story has to be recommended as the issues are not straightforward.

                              A solicitor's letter or starting proceedings sometimes has a galvanising effect, but it cannot be guaranteed. It does not take long to run up a four figure bill with a solicitor without anything being achieved. A halfway house between instructing a solicitor and starting proceedings is to get an opinion from counsel which will, or at least should (no guarantees), be more persuasive than a solicitor's letter. If you go for that option you need to go to a property specialist chambers - Google property chambers. Bear in mind though the saying that a barrister's opinion is only as good as the case presented to him. It is only worth going direct to a barrister if you have a basic understanding of the issues and feel confident that you can marshal all the relevant facts and documents.

                              If you decide to go it alone and start proceedings you should enquire on this forum: http://swarblaw.co.uk/viewforum.php?f=20

                              Comment

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