Property freehold co-owned by 8 flat-owning leaseholders who comprise board of 8 directors of new management company. Previous freeholder would not erect shed in common garden area because one leaseholder objected. Now board has voted 7/1 to erect shed, replacing a large shrub. One leaseholder claiming right of veto, yet there is nothing in their lease about garden other than the freeholder covenanting use of the common garden for leisure. Surely the board can go ahead?
Landlord’s right to alter garden
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If the garden is communal the LL doesn't even have engage in a vote to undertake the works, for example if the LL wanted to put lights in the garden they would be able to. If the shed is to be used by the LL to store their garden equipment etc, they would be within their right to do so, as the garden is not any of the leaseholders.
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Although I don't agree with ash as the objecting leaseholder does appear to have rights covenanted in his lease.
If the garden is a reasonable size, and the shed doesn't take over huge amounts of it, I imagine it is a de-minimis situation. Although the objecting leaseholder does have a right in his lease to use the garden for leisure, I imagine in this case his right isn't really being impacted. (Especially if the shed is being used to enhance leisure by stowing tools or table/chairs or anything that benefits the garden). Therefore I imagine the majority can proceed. Although I am not lawyer so just IMHO.
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Except to the extent that any document provides to the contrary...
You have to forget that the leaseholders on the one hand and the directors/shareholders in the company owning the freehold are the same people. The position is exactly the same as it would be if the freeholder had no connection with the leaseholders. It is the leases which are paramount. The landlord has no right to unilaterally alter the terms of the lease or breach any provision simply because a majority of leaseholders sanction the action. Each leaseholder can assert his rights.
It would be nice to see in exactly what terms the leaseholders are granted the right to use the garden. Assuming something fairly standard, the starting point is that each leaseholder can expect the amenity to be enjoyed in full today as it was when his lease was granted. Any change has to come down to a question of degree. The question to ask is: Is the proposed change such that the amenity will be significantly reduced? Having regard to the size of the garden will the shed take up too much space? Will it impact on the visual amenity and spoil the view? Another relevant question is: Why is the shed wanted? If it so that, for example, the seven keen shareholders have somewhere to park their bikes or pushchairs it cannot really be justified. If the garden is large, a small shed in a corner to hold gardening equipment and to be hidden by a climber will much more acceptable.
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Originally posted by John Dillermand View Post
What is the basis for this comment? The freeholder is the company owned and run by the 8 flat-owning leaseholders.
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Originally posted by Lawcruncher View Post
It would be nice to see in exactly what terms the leaseholders are granted the right to use the garden. Assuming something fairly standard, the starting point is that each leaseholder can expect the amenity to be enjoyed in full today as it was when his lease was granted. Another relevant question is: Why is the shed wanted? If it so that, for example, the seven keen shareholders have somewhere to park their bikes or pushchairs it cannot really be justified.
2. Do not understand the need to justify usage. The lease are silent on everything regarding the communal garden other than the clause I have quoted above. The shed proposed will replace a dead shrub, so will not reduce the space available. Surely the issue is about the space rather than what’s in the shed.
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What does the company's articles of association say is the position about changes to the building?
That's where the right of veto would be defined - the decision is a company decision first.
So either the freeholder can either decide to build a shed by a majority decision of the shareholders or they can't.
Then the issue is, what can a dissenting lessee actually do?
Based on the term quoted, not a lot.
But they could take the matter to a tribunal - they don't have to be right to do that.
But that's a risk, they're unlikely to change their mind about wanting a shed.When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).
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Originally posted by John Dillermand View Post1. The lease clause grants the “right to use the communal garden are [shown.....] for recreational and other purposes” There are no other references.
Originally posted by John Dillermand View Post2. Do not understand the need to justify usage. The lease are silent on everything regarding the communal garden other than the clause I have quoted above. The shed proposed will replace a dead shrub, so will not reduce the space available. Surely the issue is about the space rather than what’s in the shed.
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Originally posted by John Dillermand View Post
1. The lease clause grants the “right to use the communal garden are [shown.....] for recreational and other purposes” There are no other references.
2. Do not understand the need to justify usage. The lease are silent on everything regarding the communal garden other than the clause I have quoted above. The shed proposed will replace a dead shrub, so will not reduce the space available. Surely the issue is about the space rather than what’s in the shed.
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