Unreasonable Withholding of Consent by Freeholder?

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    Unreasonable Withholding of Consent by Freeholder?

    Dear All,

    Looking for an opinion and some legal views behind what I can do in the following situation.

    My top floor flat has rather wonky flooring, which the structural engineer's report described as "in poor condition and needs levelling to provide satisfactory living standards." I am therefore hoping to fix this by addressing the joists of the floor and happy to pay at my own expense. Given this is structural and defined within my lease, I need Freeholder permission and have thus sent across the proposed works which include further improvements to the flat overall in order to get everything done together. These plans include: demolishing 2x non-load bearing partition stud walls and rebuilding 1x stud partition wall to allow me to change the internal layout of the flat. Through these works I am making a 1 bedroom flat into a 2 bedroom flat through more efficient use of the exact same space under my demise.

    Having sent the proposed works to obtain freeholder permission via an agent, my permission has been rejected without explanation and upon probing, the only answer given was "not fond of the idea of a second room". This does not make sense to me as I believed the only permission was for the structural work, which i deemed to be the flooring.....

    The question I have are:
    1) Within my lease, could I argue that the non-load bearing walls and internal layout change are not structural? And if so, under what grounds could the freeholder reject?
    2) Further to this, if I was to change my plans, removing the structural flooring work, would I even need freeholder permission?
    3) Given this is work that is needed to the property, could I file for Unreasonable Withholding of Consent under Section 19 (2) of the Landlord and Tenant Act of 1927?
    4) In the event I go this far, what should I expect in terms of cost and likelihood of victory? What would be the next steps?

    Thanks all

    #2
    You do not need permission to carry out repairs if you have an obligation to do them.

    If the lease only prohibits structural alterations you can carry out non-structural alterations. Taking down or putting up non-structural walls is not structural. What exactly does your lease say about alterations - please quote the exact words.

    Comment


      #3
      Thanks Lawcruncher, is there a legal definition of structural? And given my most recent proposal was rejected, would you suggest I still have to tell them I will proceed with non-structural only? If i change the internal layout, I assume I would still need to send them an updated layout?

      Lease:

      "The Lessee shall not make any structural alterations in the Premises without the approval
      ~ in writing of the Lessor to the plans and specifications and shall make those alterations
      only in accordance with those plans and specifications when approved The Lessee shall
      at the Lessee's own expense obtain all licences planning permissions and other things
      necessary for the lawful carrying out of any such alterations and shall comply with all by-
      ~ laws regulations and conditions applicable generally or to the specific works undertaken"

      Comment


        #4
        Does the freeholder agree that the wall is not structural / load bearing? In my previous building, the freeholder argued that a stud wall had become load-bearing due to the length of time it had been there. I.e., that the continuous joists above it had come to "settle" onto the wall. The freeholder denied removal of the wall on that basis. There was a similar situation in another flat. After initial denial and then a lot of negotiation, the leaseholders were able to move a wall about 30 cm, but had to rebuild the wall as load-bearing.

        I have no expertise in construction and thus no idea if the above is a bunch of bollocks, but it was supported by letters from structural engineers (who may well have been friends of the freeholder).

        Comment


          #5
          They have not given a view, merely rejected the original proposal because they were "not fond of the idea of a second room"..

          Thats interesting though and certainly something I want to clear up. If Lawcruncher can help on the legal I think sending them a response telling them I will do only non-structural works and listing what they are will be the next step in order to draw out an inevitable counter-response.

          Comment


            #6
            Originally posted by wabdiddly View Post
            They have not given a view, merely rejected the original proposal because they were "not fond of the idea of a second room"..
            That sounds like an unreasonable refusal to me - but better to answer Lawcruncher's question and follow what he has to say.

            Comment


              #7
              The landlord has unreasonably withheld consent . The aim of have those terms in the lease is to protect the property from any damages or hazards caused by unauthorised work, not to give the landlord a right to say no to whatever he is not INTERESTED. And your proposal clearly improve the property value and your living space. Any judge who reads this will deem that the landlord is unreasonably withholding consent. You can appeal to PART 8 claim to obtain consent through the court , and the landlord will be responsible for the legal cost.

              Comment


                #8
                Originally posted by wabdiddly View Post
                Thanks Lawcruncher, is there a legal definition of structural? And given my most recent proposal was rejected, would you suggest I still have to tell them I will proceed with non-structural only? If i change the internal layout, I assume I would still need to send them an updated layout?

                Lease:

                "The Lessee shall not make any structural alterations in the Premises without the approval
                ~ in writing of the Lessor to the plans and specifications and shall make those alterations
                only in accordance with those plans and specifications when approved The Lessee shall
                at the Lessee's own expense obtain all licences planning permissions and other things
                necessary for the lawful carrying out of any such alterations and shall comply with all by-
                ~ laws regulations and conditions applicable generally or to the specific works undertaken"
                I am not aware of a legal definition of structure. I use the following as a working definition:

                The structure of a building is essentially the parts which support it and enclose it. It includes the foundations, external and load bearing walls, roof, beams, lintels and floors. Non-structural parts include any of the following which are non-load-bearing: windows, doors, internal walls and the fixtures and fittings.

                The works you propose, apart from the floor, do not come within the above definition and do not need permission under the above clause.

                As mentioned above, whilst the floor is part of the structure, consent is not required to repair it if it comes within your repairing obligations.



                Comment


                  #9
                  Your problem is : -

                  1) Joists are usually a freeholder item to repair,
                  BUT sometimes a lease may state you are responsible for top half of the joists your side, and if a flat below, they are responsible for half above them.

                  However, leases ( older ones ) normally state you are responsible only for the floorboards, and nothng above the ceiling plaster.
                  Have you read ALL the lease as - front ot back, even the boring parts, as often, freeholder and leaseholder obligations can occure more than once, depending on what it's talking aout.

                  2) You want to change a 1 bedroom flat into a 2 bedroom flat.
                  That is often a refusal, as if the original freeholder wanted to build, or convert,, and make a two bedroom flat, he would have done so, and asked for more money for a two bedroom flat, initially, therefore the freeholder is the recipiant of extra money over a one bedroom flat.
                  My argument, and true in many cases, is why should a leaseholder make profit from changing the layout of a flat, when it's the freeholder who makes profit from the initial build.

                  ___________________

                  You definately need authorisation to convert from on to two bedroom flat. That is the criteria I think they are refusing , and the other points are imaterial, but moving walls still need authorisation.

                  You also, if you think you are likely to get aproval, have to draw up plans to show the change of layout ( paid for profesional ) of your flat, at your cost, and legally change the definition of the flat.
                  It is also possible that the feeholder can ask for 50% of the increase in value of the property ( as stated at 2 )

                  But for freeholder to say- "not fond of the idea of a second room" is unacceptable, and you need to push for a REAL reason.

                  Yes, they have unreassonably refused consent. And until such time they come back with a plausable defense, then fight them on those grounds

                  Comment


                    #10
                    It is important in landlord and tenant law not to assume that when it comes to alterations there is some default position with respect to some aspects.

                    I am immediately partly contradict myself by asserting that there is in fact a default position, but it only applies where the lease is completely silent. Where a lease is silent a tenant can do what he likes subject to the law of waste. The law of waste rarely applies because almost all leases contain some prohibition against making alterations. For anyone interested the law of waste is explained here: Waste (law) - Wikipedia

                    As soon as a lease has something to say about alterations the position becomes: What is not prohibited is allowed.

                    Comment


                      #11
                      Just a question: Why is "structural" taken to have only to do with mechanical support? A building "structure" also serves several other purposes - for example removal of non-structural partitions can have a massive effect on fire risk for the building, transmission of noise, and other things. Placement of rooms can also impact on insurance claims (where others pay those claims) - kitchen above lounge vs consistent longitudinal water passages as designed.

                      Comment


                        #12
                        Originally posted by AndrewDod View Post
                        Just a question: Why is "structural" taken to have only to do with mechanical support?
                        Structure is about support and enclosure. They are the parts which, if you interfere with them, may prejudice a building's integrity rendering it liable to collapse or leaving it exposed to the elements.

                        When it comes to alterations to flats and maisonettes there should be a balance which allows the leaseholder to do what he likes inside the unit so long as it does not adversely affect other leaseholders. Precisely what is desirable is going to differ from property to property. What a lease provides often comes down to what the conveyancer has on his word processor. A reasonable compromise is to require consent for structural alterations, but not for non-structural alterations.

                        In my view the whole thing is best left to the local planning authority on the basis that they should know what is safe or otherwise desirable and what is not.

                        Comment


                          #13
                          Thanks a lot everyone, this is incredibly useful and I think my next step is to consult the lease advisory service as I think have 2 choices - i) remove the floors from the proposal and proceed and risk further issues/disputes from the freeholder further down the line or ii) file for unreasonable withholding of consent and proceed with the legal route.

                          Ram - for further context, the building is a 150yr old former house that has existed as 5 flats for at least 50+ years. Can you explain to me why you think an internal layout change requires freeholder approval? It is only the movement of non loading bearing walls and the new "bedroom" is marked as a study/single bedroom given it's size. I plan to use it as an office but would like the flexibility that it could be used as a small child's bedroom further down the line. If you could cite what the freeholder would be able to point to to knowingly reject this it would be very useful.

                          Lawcruncher - you seem far more confident that if I proceed without the structural floor work then there is nothing the freeholder can do. If you have any experience here I would be keen to know what the freeholder could do if they objected and under what grounds they usually dispute things? Knowing that the original plan was rejected, I think I need to go back and tell them if I am proceeding with non-structural and share with them the new layout nonetheless? Would you agree?

                          Comment


                            #14
                            Should have added ^ plans are already drawn up by the structural engineer and part of a report I have sent to the freeholder discussing why the uneven joists should be looked at and possibly mended...

                            Comment


                              #15
                              Hi all, bumping this thread again in case you can help further?

                              Comment

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