Can freeholder sell retained parts

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    Can freeholder sell retained parts

    Hi all,

    I’ve sifted through a lot of good advice but can’t find anything regarding this specific situation.

    I am one of four leaseholders in a flat conversion property.

    The original property was a house with a large garden and the developer (freeholder) retained a 100m2 plot of land at the rear. There is a footpath along the side of the converted building from the street that provides sole access to three of four flats (door at side of building), two private gardens, bin refuse and the rear retained plot. Picture attached

    In the lease the entire plot is outlined as retained parts excluding any privately owned by the freeholder. In the approved planning permission only the rear plot is outlined as “freeholder amenity”. So my understanding is that everywhere else is retained parts. Picture attached

    The freeholder has auctioned of the freehold ownership plot of land, but outlined the path in the plot advertisement.

    So my questions are:
    Could the freeholder have sold the footpath?

    Can the freeholder sell bits of retained parts without offering first right of refusal?

    If they have sold it would the new owner be able to enforce further ground rent or restrict access?

    Does this mean if the four flat owners action our right to purchase the freehold we’d never own it fully as the freeholder no longer has 100% of the retained parts to sell?

    If the footpath is still retained parts and ownership remains unchanged, do we have to cover costs of maintenance for fixtures added for the benefit of the rear plot e.g. path lights to the rear plot entrance, security gate (which will technically benefit the garden owners)?

    I appreciate these may be silly questions, but there was once a time when the question of the developer getting planning permission to build a bungalow in a back garden was seen as silly (the contractor working on it keeps saying he has no clue how they got it) and here I am!

    Thanks to those who made it to the end!

    #2
    Generally a freeholder can do pretty much what they like with any part of a freehold that they retain - as long as this isn't restricted by existing leases.
    It is possibly for freeholds to be split into two, or more, separate freeholds even though that might complicate the situation for people who already own leaseholds.

    If the path and 'freeholder amenity plot, have been split off into a separate freehold and sold you first need to confirm what your own leases say about that land. If your leases give you any rights to the land that has been sold the freeholder will have had a responsibility to ensure that those rights were maintained following the sale, for example the new freehold will need to say that the existing leaseholds have the right to 'pass over' the land that forms the path (or whatever the appropriate legal term is).
    If you previously had the right to use the land that is being built on as a garden, you might be entitled to be compensated for the loss of this by the freeholder - who probably didn't have the right to sell without your agreement if that was the case.

    It is also possible that your leases may need to be altered (or have a deed of variation attached) to reflect the fact that the freehold has been split (if it has been split and the land hasn't just been sold as a new leasehold). You may need. to take legal advice on this, and it's probably best checked soon rather than leaving it until you want to sell and losing sales because the buyers solicitor finds that things don't match.
    I would expect the freeholder to be responsible for any costs if your leases need to be changed, but you may need to fight for that!

    Comment


      #3
      Thank you Macromia! So helpful; yes splitting the freehold definitely complicates things when you all share one entrance. I’m trying to compare it to a new flat being built on top of a block (normal)... but sold as a freehold property (okay)... along with freehold on the block’s stairwell (and that’s where things get a bit messy)

      Focusing on the actual situation; in the lease the footpath isn’t explicitly excluded from the building plan or common parts definition, nor is it identified as the landlord’s amenity or private land. We also haven’t received any notice of a new (partial, sort of?) freeholder so I think you’re right; he probably doesn’t have the right to sell it and perhaps he sold the rear plot with freehold ownership and gave them a lease with right of way on the path.

      But this is an interesting point that the freeholder can do what they want with the retained parts (so long as lease rights are retained), I didn’t actually know that. Will be keeping an eye out for a tiny house appearing in the bin refuse!

      Comment


        #4
        I suggest you visit the planning section of your local council and find out if the retained area can be granted consent for a tiny house.

        Comment


          #5
          Originally posted by NicolaNaa View Post
          Focusing on the actual situation; in the lease the footpath isn’t explicitly excluded from the building plan or common parts definition, nor is it identified as the landlord’s amenity or private land. We also haven’t received any notice of a new (partial, sort of?) freeholder so I think you’re right; he probably doesn’t have the right to sell it and perhaps he sold the rear plot with freehold ownership and gave them a lease with right of way on the path.
          To be clear, my understanding is that a freeholder has the right to 'sell' any land covered by the freehold that isn't already demised to someone else.
          If land under the freehold has been demised to someone else under a lease, the freeholder can sell the freehold to that land but cannot sell any right to let anyone actually use the demised land - unless the right to do this is somehow included in the existing lease (which would be unusual).
          It's more complicated where leases give (or perhaps even just imply) rights of access. I would expect that the path could be sold to a new freehold, but the new freehold would then have to include rights of access to allow the existing flats to continue to access their property.
          Similarly, if the path was not sold to a new freehold but the retained amenity land was, the freehold for the new property would have to include access rights allowing them to pass over the existing freehold.

          Comment

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