Landlord’s right to alter garden

[John Dillermand]

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?

[ash72]

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.

[andybenw]

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.

[Section20z]

Freeholder has no right to build a shed in a common area, regardless of what's kept in it.

[Lawcruncher]

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.

[John Dillermand]

Freeholder has no right to build a shed in a common area, regardless of what's kept in it.

What is the basis for this comment? The freeholder is the company owned and run by the 8 flat-owning leaseholders.

[Section20z]

What is the basis for this comment? The freeholder is the company owned and run by the 8 flat-owning leaseholders.

As #lawcruncher says above, unless there is anything contrary in the leases then every lessee has the right to use all the garden. No different to building a shed on the front garden path.

[John Dillermand]

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.

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.

[jpkeates]

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.

[Lawcruncher]

1. The lease clause grants the “right to use the communal garden are [shown.....] for recreational and other purposes” There are no other references.

"For recreational and other purposes” has to be interpreted applying the ejusdem generis rule, which is that in a list the general words must be of the same kind as the specific words. So, "other purposes" cannot be just anything you like. That would mean rewriting the clause to something like: “the right to use the communal garden for any purpose” which cannot have been the intention. Rather, the clause needs to be read "for recreational and like purposes". Taking the clause as a whole, the area can only be used for recreational or related purposes of the kind one would expect to be conducted in a communal garden. So, putting up a table tennis table or a gazebo for leaseholders to take tea and even installing a barbecue should be fine. Equally acceptable, if the community actually owns garden tools that do not have a suitable place to be kept, would be a small shed to keep garden tools because that would be incidental to the use of the area as a garden. Allowing leaseholders to repair their cars or use it for storage goes too far.

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.

The area is set aside for a specific purpose and all the space must be directed to that purpose. If a large shrub dies that is not a good reason, to reassign the space for an undesignated purpose. You replace it, grass the area over or put in a garden feature.

[andybenw]

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.

Re 2. Why don't you explain what the usage will be, and you will get a more definitive answer from Lawcruncher. Sounds like it might be the purpose of the shed the objecting leaseholder is objecting to, rather than just the fact of a shed. Enlighten us.