Management of freehold problems

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    Management of freehold problems

    Hello, could I get some advice because I bought a flat with a share of the freehold 11 years ago. A couple bought the other flat in the house about 5 years ago and I was unable to consent to their plans for building an extension before they moved in and they have been annoyed since that happened. A couple of years ago they decided to build a summer house in the garden (which blocks access to the back of the house) without discussing with me and said my agreement was not required because it is a temporary structure (which they obtained retrospective planning permission for after it was built). When we have problems they tend to involve the neighbours directly around me but I am a private person so I dont want to discuss these issues with the rest of the street. I live alone, feel intimidated by them and try to avoid any interaction with them as much as possible. An on-going problem is that they wont let me access the back of the house despite what the lease says and the only way to do this now is through their flat because they have blocked the alleyway at the back of their garden with the summerhouse. They will reluctantly let tradesmen through with notice (the man in the couple discusses the work at the back of the house that I am paying for because they wont allow me through) and they say that this should be adequate access. I have tried to get advice from family and friends but none of them live in a flat which is a share of freehold so they don't understand how complicated the situation is. I have spoken to a solicitor and he says that I should take legal action because they are breaching the lease but i am reluctant to do this as a civil dispute will make both our flats difficult to sell. The leasehold advisory service suggested mediation but the couple ignored me when I proposed this. I also proposed a declaration of trust (which would have maintenance obligations listed) with a budget we paid into but the couple would not agree. I am losing sleep and have thought about selling but I love my flat. Has anyone been in a similar situation? What do you do when the relationship between the people who manage the freehold breaks down?

    #2
    The solicitor you spoke with i think was right, at the moment you are seen as the weaker party in this dispute and i see no reason why they would change their ways in the future, in fact i can see them taking even more liberties It may make the flat more difficult to sell with legal action taking place, but given how bad the access is at the back i cannot see how the valuation has not already been affected. Bullies do not stop their bullying behavior by inaction, i see little room for movement with them given how they have behaved already. It sounds awful but sometimes direct action is what is needed. You give an inch.... they take a mile.

    Comment


      #3
      Hi, related to my post above. Please can anyone advise what happens if in a house where myself and the other flat, joint own the freehold and the other flat has sole use of the garden (on their lease)-what exactly does that mean if I am the other freeholder? Are there any circumstances which could mean they no longer have sole use of the garden such as denying access to other joint freeholder? I am thinking about the access issues described above and I would like to create an external stairway from my flat so that I don't have to ask the other flat for permission to show workmen maintenance work. The stairs would also be used as a fire escape from the first floor. Can I do that without their permission and would I have to ask for planning permission?

      Comment


        #4
        Firstly, may I say I empathize with your situation and endorse Hudson’s post: give an inch they will take a mile.

        As the garden is demised to the other flat you have no rights over it in your capacity as leaseholder. As a member of the company (or whatever the arrangement is) that owns the freehold there would be limited occasions you may be able to request access. For instance related to repairs to the building. That said, if the other leaseholder refuses access, you would need to apply to court as you cannot just access another’s premises without permission even where the lease permits this.

        However, it appears you do have rights to access the back of the house and will need to take legal advice to assess options. If the summerhouse is preventing access that your lease gives you rights to the leaseholder of the other flat may be compelled to remove it. This would require court intervention as it is unlikely they will comply willingly. Retrospective planning permission for the summerhouse would be irrelevant.

        With regard to the stairway from your flat, you would need planning permission and if this encroaches on the other flat’s demise, you will not be able to proceed unless they agree.

        I suggest you contact LEASE in the first instance for advice.

        Finally, please let us know the nature of your right to access the back of the house: is it an easement for instance?

        Comment


          #5
          Hi vmart, thanks for your advice and help. The right to access is in the easement section of the lease which should be allowed through their flat or an alleyway at the back of the house,which they blocked with a fence and large summerhouse without discussing with me. A solicitor advised that I could ask them to remove the summerhouse and large fence as it breaches the lease but the couple claim since it is temporary structure they don't need my consent. However, with retrospective planning permission the summer house can be there indefinitely. I contacted leasehold advisory service and they said the lease gives me the following rights

          Clause 3(f) allows the Lessor (both you and the other freeholder) to get access with or without workman into the ground floor flat to examine the condition and carry out repairs once you have served a notice giving reasonable times for inspection.

          Clause 3(g) confirms that ground flat leaseholder/freeholder cannot make structural alterations or structural additions or erect any building, or remove lessor's fixtures without prior consent from the lessor ( they could not have carried out the alterations without having first sought your consent).

          Clause 3(l) gives similar rights, as confirmed in clause 3(f). Clause 3(l) deals with repairs, maintenance, supporting, rebuilding, cleansing and lighting, not just the flat but any other part of the building.

          Under the second schedule of the lease, clause 4, gives all lessees with workman and others to enter the other parts of the Mansion (on reasonable notice other than in an emergency) for repairs and maintenance.

          Under the second schedule of the lease, clause 5 gives all lessees with workman and others to enter the other parts of the Mansion (on reasonable notice other than in an emergency) for repairing maintaining renewing altering or rebuilding the Flat or any part of the Mansion giving subjacent or lateral support shelter or protection to the Flat.

          Leasehold Advisory Service said It seems like there has been a breach of the lease if the other leaseholder (also a freeholder) is preventing access, blocking access by erecting a fence and carrying out structural works and additions to the property without consent. It is difficult and costly to take action against the other leaseholder/freeholder for breach of covenants in the lease or for forfeiture. You will need court's permission to do this before you can bring any action against the ground floor flat under section14 of the Trusts of Land and Appointment of TrusteesAct (TLATA 1996).

          They advise to get mediation but when I proposed this the couple ignored me. I feel the couple bought the flat assuming they could extend and because I was unable to consent, they have just tried to make my life difficult for the last few years. I don't have loads of money to pay on legal fees so I am reluctant to go down that route if possible but don't want to lose my right of way because I cant use it. Thank you

          Comment


            #6
            The first Clauses you cite pertain to lessor’s rights of access in terms of repairs etc.; with Clause 3 (g) covering alterations, erection of buildings etc. Therefore, as LEASE explained there has been a breach of lease by carrying out alterations without consent. However, a) consent cannot be unreasonably withheld; and b) the leaseholder has the consent of one of the parties that is the Lessor. I would doubt therefore it would be worthwhile pursuing legal action.

            The Clauses giving lessees’ access pertain to the reasons for access cited e.g. repairs, maintenance, renewing etc.. You stated the leaseholder is allowing access, albeit reluctantly, for trades people. Therefore, I cannot see there is a valid claim to be pursued or at least not one worth pursuing. To take Clause 4 it: …’gives all lessees with workman and others to enter the other parts of the Mansion (on reasonable notice other than in an emergency) for repairs and maintenance’ which the leaseholder is permitting.

            The only difficulty appears to be access now needs to be through their flat rather than via the alleyway (I am surprised they created this scenario). However, provided they allow access, they are arguably not in breach of the Clauses 4 or 5 or for that matter Clauses retaining rights for the Lessor.

            As you wrote, legal action would be expensive so unless you have a solid case and deep pockets this is perhaps one to let go. The position is further complicated because the people concerned are also decision makers in the freehold interest though you do not state the legal set up of this. Is the freeholder a company? However set up, from LEASE's comments it is held in Trust for the leaseholders hence you would need to bring action under section 14....

            Furthermore, what was your objection/s to the extension? How would it impact on you were this to go ahead? I ask these questions since this could be a good opportunity to negotiate. You allow them the extension, they allow you to build a stairway. Please let us know more details: how would the stairway encroach on the other leaseholder's demise?



            Comment


              #7
              Hi, thanks for taking the time to write this very helpful information. In relation to the extension, I had a bereavement in my family and at that time and was unable to deal with the disruption when I would have to live in the flat. I was also concerned because it was a wrap around extension that would mean that I couldn't access the back windows. I have proposed that I would be open to them extending now, if I could do a loft conversion but I believe since they now have small children they don't want to extend anymore. I was not aware that an extension was only an option before they moved in and since the large summerhouse stretches across their garden and provides them with the extra space they need. The staircase would have been a simple steel one which would also act as fire escape but they said they would not consider it because it could 'infringe on their intimate family moments'. I do worry about the summer house going on fire as it is close to the boundary fences and with fairy lights outside and has electricity and heating in it and made of combustible materials (ie timber). The local Council planning department approved (after I expressed these concerns) so I assume it is safe and won't go on fire.

              I think that I will have to just let the situation go as I cant afford to take them to court.

              Comment


                #8
                So long as they allow you access when required in accordance with lease terms there should be no issue.

                Nevertheless, to move forward now might be the time to improve relations and use the situation to bargain for your loft conversion and balcony. An advantage of you and the other leaseholder also being the Lessor is you should be able to accommodate each other in respect of works which would otherwise be breaches of lease.

                You could write to them (or discuss depending upon your relationship) and propose the freeholder regularizes the situation regarding permission for the summerhouse so consent is provided. Explain too you are considering a loft conversion and balcony and write to ask for their consent before applying for planning permission. Present this as a quid pro quo arrangement: you agree to consent for the summerhouse; they agree to consent for the loft/balcony. You will find on this forum suggested text for legal documents so neither you or the other leaseholder need to incur legal fees (besides as one is a solicitor they should be able to do this without incurring fees!)

                Anyway, just a thought.

                Comment


                  #9
                  Hi, thanks. I did try to talk to them last year and I said that I would give them consent for the summer house if they approved my proposed stairs. The couple said they don’t need my consent for the summer house as it is a temporary structure, so they owe me nothing granting me consent for stairs. How can a building that has planning permission be a temporary structure? Apparently, they have also told neighbours that I consented to the summerhouse already but have forgotten.I keep a record of emails and only have an email where I asked what they were building and they said they were doing paving. I certainly didn’t consent because it has meant losing my right of way. I think our relationship has broken down too much for us to work together on changes to the building.

                  Comment


                    #10
                    You have not lost a right of way - please refer to post #6.

                    It does appear you have already attempted negotiating. There is nothing to stop you writing to the other party requesting consent for your steps or the other projects you mentioned. While I do not know the layout of the building and whether or not your projects would encroach on the other party's leasehold interest, assuming this in not the case, they too cannot unreasonably withhold consent when making decisions as freeholder.

                    Further, I would certainly write a letter (letter not email, sent signed for) stating the legal position in relation to the summerhouse and confirming this was erected without consent of the Lessor. Also state the resolution you require. I would suggest consulting LEASE and/or a solicitor to assist with the content of the letter. You can then set this aside given your conclusion post #7.



                    Comment


                      #11
                      Thanks for the advice and I do think that a formal record that I did not consent needs to be registered. However, by sending them a solicitors letter the situation will escalate especially since the wife is a solicitor. Do you happen to know if a temporary structure needs (with planning permssion) needs to have consent from the other freeholder?

                      Comment


                        #12
                        Hey all, I wonder could I have clarification please. I am a joint freeholder with two flats in building and my neighbour has sole use of garden. When they bought they installed a large fence around boundary of garden and said they would put in a gate, as I am supposed to have a right of way via an alleyway but they didn't do this. Over a year ago my neighbour then erected a large summer house and when I asked them what they were building they said it was a summerhouse but they said they did not need my consent as it was a temporary structure. Electricity, heating and wifi has been installed and occasionally they use as a spare room when guests stay over. I advised they needed planning permission which they retrospectively applied for and I objected, it still got approved. The Council say that if it blocks a right of way then that is a civil matter and they are concerned with materials used and also if it will impact my privacy (and it does but that is another issue). The Council now say that the summerhouse could be there indefinitely (since it has planning permission) so surely it is not a temporary structure? I am intending to get a letter from a solicitor to indicate that as joint freeholder, I did not consent and we will need to resolve this. However, before I pay fees-can you clarify if it is a temporary structure? For reference, the lease says

                        Not to make any structural alterations or structural additions to the flat nor to erect any new buildings there on or remove any of the landlord fixtures without the previous consent of the lessor

                        Best wishes

                        Comment


                          #13
                          If it has planning consent then it doesn't need to be classed as a temporary structure. Are you just put out because you weren't consulted or do you have a real objection?

                          Comment


                            #14
                            Hi, the issue for me is getting access to the back of the house as presently I have to ask their permission to get maintenance done. If I could use the alleyway then I don’t have to ask permission because the summerhouse plus the fence blocks my access via the alleyway. I would have like to have been consulted especially about the design as I don’t have a lot of privacy in back bedrooms especially on hot days (when I can’t shut blinds/curtains) as the couple frequently sit there when weather is warm. I am worried that with planning permission it will never be moved and it will prevent me from ever being able to use the alleyway to back of the house.

                            Comment


                              #15
                              The erection of the summerhouse without consent is a breach; the clause quoted does not exempt temporary structures. Taking action for a beach of covenant is a bit involved as before you can service a formal notice either the tenant has to admit the breach or the tribunal has to confirm there is a breach.

                              The fact the structure prevents you from exercising your right of way is a different matter as that is a trespass on your rights.

                              If a solicitor is going to get involved he should of course bring up both aspects.

                              If the tenant is sensible he will sort this out as otherwise he will have difficulty selling.

                              Comment

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