Buying flat with alterations prohibited by the lease

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    #16
    I do not see the relevance of the Duval case.

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      #17
      I contacted Buckles and they are not able to take it on but suggested that I initiate the complaint process with my current solicitor.

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        #18
        g . That is a shame. Were they at least able to confirm your position or if what u had been told by ur solicitor was even correct?

        As Lawcruncher rightly pointed out above, if that is the case that ur solicitor is referring to, I do not think that the Duval case applies in ur situation.

        The reason why I am particularly interested in ur case is that I might have a similar situation where alterations made by my predecessor were made without consent (missed during conveyancing).

        Even though it is not an issue now (since I am not planning on selling any time soon), I am keen to understand how ur case will finish, since this will give me tips on how to handle my own situation in the future, if it comes to that.

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          #19
          Originally posted by g . View Post
          I contacted Buckles and they are not able to take it on but suggested that I initiate the complaint process with my current solicitor.
          Have you written to your solicitors in the terms I suggested. If not, then I recommend you do that before you initiate any sort of a complaint. You need to give them a chance to reconsider.

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            #20
            Back from the bank holiday weekend and I have a response now on the points laid out in post #13. Here is what they say...

            Doctrine of Waiver – We don’t have evidence that the landlord had knowledge of the breach so we cannot rely upon the doctrine of waiver.

            Limitation Act – This applies to costs claims only, such as ground rent and service charge. In addition, the lease and the freeholder's ability to take action under it continue for the full term, there is no limitation on consent to alterations. We have just acted in a surrender and regrant where the clients’ works were 15 years old, and did not comply with current Building Regulations, so they had to upgrade works.

            New lease – This was a surrender and regrant, but incorporated all of the existing covenants of the old lease and that the surrender is not a release of any antecedent breach of covenant in the old lease. The new lease did not include any new plan showing the extension in place, or any clause stating earlier alterations were approved.

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              #21
              Doctrine of Waiver – We don’t have evidence that the landlord had knowledge of the breach so we cannot rely upon the doctrine of waiver.

              That may technically be the case. However, I think that after twenty years knowledge has to be assumed. Apart from that, I cannot see any court allowing forfeiture for alterations carried out 20 years ago.

              Limitation Act – This applies to costs claims only, such as ground rent and service charge. In addition, the lease and the freeholder's ability to take action under it continue for the full term, there is no limitation on consent to alterations.

              That is not what section 8 of the Limitation Act 1980 says. Buckles agree with me. They say "... the limitation period for a breach of covenant is 12 years" on this page: Supreme Court makes ground-breaking ruling on enforcement of covenants - Buckles Law (buckles-law.co.uk)

              New lease – This was a surrender and regrant, but incorporated all of the existing covenants of the old lease and that the surrender is not a release of any antecedent breach of covenant in the old lease.

              A surrender without a regrant may not release the tenant from any breach occurring before the surrender, but a new lease replaces the old. The fact that the covenants are identical does not mean that they are not new covenants. If the old lease was still binding it would bind an assignee who had no knowledge of it.

              The new lease did not include any new plan showing the extension in place, or any clause stating earlier alterations were approved.

              The purpose of a lease plan is to identify the property, not to confirm the layout. No doubt the old plan was used because the conveyancers were not aware that alterations had been made. Anyway, the plain fact is that the demise is of the property as altered. No plan can change that.

              As I said above, the limitation and waiver points are not really relevant because a new lease has been granted. However, If am wrong on the new lease point then they are relevant. If the waiver point is slightly doubtful there is no arguing with section 8 of the Limitation Act 1980.

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                #22
                To follow up and bring this to a close, I can report a happy ending despite a difficult road. Regardless of the legal opinions shared here and confirmed with other solicitors that I’ve spoken with, my solicitor was not swayed in her position. I filed a complaint and escalated the matter but the firm was backing her position and invited me to find another solicitor.

                Fortunately, I was able to track down the previous owner that extended the lease and she provided the evidence required that the freeholder had knowledge of the alterations. My solicitor is happy now and progressing the transaction.

                Thank you to Lawcruncher and everyone who chimed in to help. Good luck with your situation Babyspice.

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                  #23
                  g . thank u for sharing. I am glad to hear that there was in the end a happy ending to ur situation . All the best for the future.

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