Freeholder's consent

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    Freeholder's consent

    I am freeholder and tenant in a converted Victorian house. The lessee of the top flat wants to sell and asked for written consent for:
    1) right to pass from a driveway that leads to a parking spot. His lease mentions the right to park in that spot (along with another lessee, so 2 flats have the right to park in that spot), but doesn't mention the right the pass from the driveway, whereas the other lessee's lease grants this right. Given that the right to park cannot be exercised without passing from the driveway, the prospective buyer wants assurance that this right can be actually exercised
    2) right to use the attic. The attic is not demised to the flat, but can only be accessed via the flat, and is used for storage.
    3) retrospective consent for past alterations (knocking down a wall to make the kitchen area open space and replacing windows).
    I want to balance maintaining a good relationship and not giving away rights that I may regret in the future.
    I was thinking of saying for items (1) and (2) that without prejudice to my and others' rights and until further notice, I do not object to this usage. Is this dangerous in not being able to actually revoke this license in the future?
    For item (3) to provide this consent (the works were approved by a surveyor and structural engineer and do not cause any harm).
    Any concerns/thoughts? Is legal advice necessary here?

    #2
    1) The right to get to the parking has to be implied. You cannot grant a right to someone without allowing them the means to exercise it. No problem therefore in confirming that point.

    2) There is a difference between "not demised" and "not expressly included by words in the lease". See this thread: https://forums.landlordzone.co.uk/fo...-in-the-lease= The first thing is to read the lease. You can then form an opinion as to whether the loft is included. There is also the possibility that, if the attic was not included in the demise, use for a sufficient period will have added the attic to the demise under the principle confirmed by Smirk v Lyndale Developments: https://swarb.co.uk/smirk-v-lyndale-...-ltd-chd-1975/ If the attic is not included in the demise then saying that you consent to its use for storage and that the permission may be withdrawn at any time will not prejudice your position, though it is a good idea to "renew" the permission at regular intervals (say annually). Naturally, if the attic is demised nothing you say will change the position. If you do respond by granting permision on terms that it may be withdrawn it may put the buyer off, which I think you would be reluctant to do. Accordingly, unless there is something in the lease which clearly excludes the attic, you may wish to give careful consideration about how you respond. A possible compromise is to give permision to use for storage and nothing else. That would reserve your position if the lessee wants to convert the attic to a living space.

    3) If the works were carried out over 12 years ago there is no action you can take. If that is the case then say that to the lessee. If the works were carried out some time ago, the lessee has an argument that by failing to object the landlord has acquiesced. However, the buyer may not want to proceed unless the position is certain. I think that to start with you can ask for evidence that the works were supervised by a surveyor or structural engineer. If that is not forthcoming you need to consider whether an inspection by a professional is justified.

    Comment


      #3
      Thank you very much. There's no mention of the attic anywhere on the lease. It says that the ceiling is the property of the lessee, all other parts of the building including exterior walls, roof, roof joists etc are property of Lessor.
      The works were carried out about 8 years ago (windows) and about 3 years ago (kitchen). Approved by a surveyor (at buyer's request).

      Comment


        #4
        Originally posted by stressed12 View Post
        Thank you very much. There's no mention of the attic anywhere on the lease. It says that the ceiling is the property of the lessee, all other parts of the building including exterior walls, roof, roof joists etc are property of Lessor.
        Assuming there is no relevant detail omitted, that on its own is not sufficient to exclude the attic. As stated in the thread I referred to above, you have to read the lease as if the words of the statute are included except to the extent that the lease provides otherwise. A lease will provide otherwise if (a) the effect of statute is expressly stated to be excluded (b) there is some provision in the lease which indicates an intention to exclude the attic, such as granting rights over it to the lessee (c) the attic is expressly excluded by clear words. Failing that, if a lease reads something like:

        All That first floor flat at [...] including the ceiling but excluding the exterior walls, roof, roof joists [and whatever but the attic is not mentioned]

        then, applying the words of the statute after editing to remove anything not relevant to your case, we get:

        All That first floor flat at [...] including the ceiling but excluding the exterior walls, roof, roof joists [and whatever but the attic is not mentioned] together with all erections, fixtures, areas, liberties, privileges, rights, and advantages whatsoever, appertaining or reputed to appertain to the flat or any part thereof, or, at the time of the lease, occupied or enjoyed with or appurtenant to the land the flat or any part thereof.

        You then ask if the attic comes within those words. I think it has to if, at the time the lease was granted, there was access to the loft from within the flat and from no other point.

        Originally posted by stressed12 View Post
        The works were carried out about 8 years ago (windows) and about 3 years ago (kitchen). Approved by a surveyor (at buyer's request).
        It is I think it is too late to make an issue of the windows if there is no obvious sign of any defect. The kitchen is borderline for time, but does involve the possibility that the structure was prejudiced. However, if a surveyor has looked at the flat and passed it there would seem to be no point in making an issue of it. Rather than saying you give retrospective consent or waive any breach of covenant, you should say that having regard to the surveyor's comments you will not be investigating whether any of the work has been carried out correctly, but that you reserve the right to take action should it be found that the work was defective and the structural integrity of the building prejudiced.

        Comment


          #5
          Originally posted by stressed12 View Post
          I do not object to this usage.
          This is a very dangerous phrase to use.

          It implies that you WILL grant permission to use / modify even if the leaseholder does not ask for permission and proceeds without permission, either now or in the future.

          Your stance should be, that the freeholder must make available to himself, sufficient professional advice, and not rely on any surveys instigated by the leaseholder, but instigated by the freeholder, to make sure the building is safe, that the other leaseholders are confident that the freeholder has carried out reasonable checks ( at the leaseholders cost ) to safeguard the building and all leaseholders safety.

          You will look at the surveys carried out on behalf of the freeholder, and not until you are in receipt of all facts, be they good or bad, can you make a decision to agree or disagree with professional advice.

          Regarding the attic: just because a hatch is in the roof space to be able to inspect the condition of the roof / maintain any water cisterns up there, does not mean the attic / loft belongs to the leaseholder in a top floor flat.
          The lease states what is included in the demise, together with a basic floor plan edged in red.
          There will be one for the flat, and if the loft / attic is demised to the top floor, a similar floor plan edged in red will be included in the lease, and be stated in the lease that "all that is included within the loft" -- or similar jargon.

          As I said previously this month, where is a hatch supposed to be ?
          On the ground floor ?
          A door in the top most side elevation gable end with a ladder up to it ?

          No, a hatch goes in the ceiling of the top floor flat.

          If the loft space was included in the lease, it would have cost £ 40,000 more at least than it was sold for, and similarly a substantial increase over the other flats without a loft.

          Comment


            #6
            Ram, you may wish to revise your opinion after reading the following cases:

            Dorrington Belgravia Limited v McGlashan [2009] 1 EGLR 28

            Davies v Yadegar [1990] 1 EGLR 71

            Haines v. Florensa [1990] 1 EGLR 73

            Waites v Hambledon [2014] EWHC 651 (Ch)

            Comment


              #7
              Originally posted by Lawcruncher View Post
              Ram, you may wish to revise your opinion after reading the following cases:
              Errr, NOPE.

              One property that I am connected to, i was there at the conception of the conversion from a single house ( servants in the basement - but before my time )
              The single house of course had a a number of hatches in the top floor ceiling to access the roof space ( weird shaped roof )
              THAT'S were hatches go, and not via a ladder outside.

              All rooms on all floors were converted to make 2 flats on all floors.
              Each flat was on one level only.
              The top flats were on one level only
              All sold at similar prices.
              If the top flats included the loft, they WOULD have been sold at a much higher price, as confirmed by the original freeholder, and floor plans included if loft area was included, which the loft was not included.
              They were not sold at a higher price as the demise did not include the roof space, and original freeholder did NOT include the loft within the demise.
              All leases show the demise, and state the demise which is on one level only.
              The loft is not in their demise, therefore there is only a one level plan, showing the demise, outlined in Red.

              No way is anyone going to get a free 2 story flat when sold only a single story flat, because someone says a hatch in their ceiling entitles them to free unpaid extra space.

              ~Nope, sorry. not going to happen.
              And informal conversations have already taken place that the loft is not for sale, ( or by theft, as you condone ) and no conversions will be entertained, and the loft belongs to the freeholders and will remain so., and valid reasons for that statement also included.

              People may be able to get an extra floor for FREE, but not on my watch.








              Comment


                #8
                Agree with Ram on this as well , and have had personal experience where a lessee "stole" the roof space and converted it but had to pay for a deed of variation when she came to sell which is when you will encounter the problem.
                Don't forget you are not just stealing the attic space, but the airspace above which also belongs to the freeholder. ie taking away his potential to build upwards or perhaps install Solar PV (I've done both)

                Comment


                  #9
                  Whether the roof space above a top floor flat or maisonette is included in the demise is not a question to which there is a crystal clear answer. However, one thing we know for certain is that there are cases where the courts have decided that not only roof spaces but also the column of air above the roof are included where the wording of the lease does not expressly exclude them. Accordingly, any statement to the effect that it is always the case that the roof space is excluded unless expressly included by words appearing in the lease is to misstate the law.

                  Law cases do not always set out hard and fast rules. A decision may set out something approaching guidelines, but be hedged round with warnings to the effect that the outcome in any particular case is going to depend on the facts. However, my impression is that the tenor of the cases favours lessees. Any landlord who goes to court claiming that the roof space is not included when there is nothing in the lease which indicates it is excluded runs a very high risk of losing.

                  Whilst the law has perhaps not set out any presumptions which a lessee can rely on, I think it is safe to assert, at least tentatively, that the position is as follows:

                  If a lease of a top floor flat or maisonette does not contain anything which indicates that the roof space immediately above it is excluded, it is included if (a) at the time the lease was granted the roof space was accessible from within the flat or maisonette and from nowhere else (b) the lessee using the roof space does not adversely affect the rest of the building (c) there is nothing unusual about the layout or construction of the building which would lead a reasonable person to conclude that the roof space was not part and parcel of the demise.

                  It must also be remembered that, even if a landlord successfully argues that the roof space was not included when the lease was granted, the principle in Smirk v Lyndale Developments Ltd may apply if the lessee has actually been using the roof space.

                  Comment


                    #10
                    Thank you for the responses.
                    Regarding the parking, I understand that the right to pass through the driveway is implicit and therefore there's no harm making it explicit with a deed of variation. How does it then work if two people have the right to park in the one parking spot, and they both want to? The parking spot is demised to our flat (and we also have the freehold), but another flat also has the right to park there. At the moment it's not an issue because we don't have a car. But we may get one in the future. What happens then?

                    Comment


                      #11
                      Originally posted by stressed12 View Post
                      Regarding the parking, I understand that the right to pass through the driveway is implicit and therefore there's no harm making it explicit with a deed of variation.
                      Since the ancillary right is implicit no deed of variation is needed.

                      Originally posted by stressed12 View Post
                      How does it then work if two people have the right to park in the one parking spot, and they both want to? The parking spot is demised to our flat (and we also have the freehold), but another flat also has the right to park there. At the moment it's not an issue because we don't have a car. But we may get one in the future. What happens then?
                      It is probably going to depend on which lease was granted first.

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post

                        Since the ancillary right is implicit no deed of variation is needed.
                        The prospective buyer's solicitor has said they require it. The seller (my neighbour) will cover the legal fees. So I agree it's unnecessary but also no harm done in granting it, right?

                        Originally posted by Lawcruncher View Post

                        It is probably going to depend on which lease was granted first.
                        That would be the other flat. But then how is it possible to grant a right and what's more a demise of a parking spot to a flat, if the right can't be exercised if another flat has that right first?

                        Comment


                          #13
                          Originally posted by stressed12 View Post
                          The prospective buyer's solicitor has said they require it. The seller (my neighbour) will cover the legal fees. So I agree it's unnecessary but also no harm done in granting it, right?
                          There is no harm in confirming what is the case. The prospective buyer's solicitor has a weak grasp of real property law. The seller's solicitor either also has a weak grasp of real property law or has failed to pesuade the prospective buyer's solicitor that the deed is unnecessary. The seller is going to be down whatever your solicitor thinks he can charge for the deed - unless you do the deed yourself.

                          Originally posted by stressed12 View Post
                          That would be the other flat. But then how is it possible to grant a right and what's more a demise of a parking spot to a flat, if the right can't be exercised if another flat has that right first?
                          If the lease of the other flat was granted first then it has a right to park which no one can interfere with. The inclusion of the parking space in the second lease did not grant a right over the space - you do not grant rights over land demised. The space is though subject to the rights granted over it by the first lease.

                          Comment


                            #14
                            Hi, I want to buy freehold of my semi-detached property and have approached the landlord. The lease is for 800 years and ground rent is 7£ per annum. The previous owners have done a loft conversion . I being a first time buyer was unaware of the consent thing and had trusted that solictors will sort things out. But it turns out I have to get a retrospective consent in order for them to comply to sell freehold. I am not sure how much they are going to ask yet!!. Also there has been extension like a small porch without alteration to the wall on the rear of the property in 1975 . If they raise this small extension is it valid for them to do so. the house has had been sold twice after that and I dont have any papers to see if consent was taken.
                            The conveyancing solictor had mentioned it as a query but seller had replied not aware if there is breach of covenant ...
                            A indeminity insurance was taken but now it is void ? as I have contacted the leaseholder.

                            If the leaseholder suggests a ridiculous amount what options do I have?? really stressed regards this now.

                            Appreciate any advise. Thanks.

                            Comment


                              #15
                              Why did you tell them ?
                              If they want a ridiculous amount then just back out, no great loss and unlikely they will take action for the breach.
                              If they do then deal with it then .

                              Comment

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