Can leaseholders scupper my plans to develop rooftop?

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    Can leaseholders scupper my plans to develop rooftop?

    I own the freehold to a block of flats in London. After several rounds of rejected planning applications, I have recently secured the planning approval to build on the flat roof. I could build 2x 2-bedroom flats.
    The leaseholders were very vocal with their objections, especially those in top floor flats. As the planning permission was granted, this of course means that our revised plans have now ensured the existing residents’ amenity won’t be affected.
    Will the leaseholders be able to stop, or
    significantly delay my development? What should I look out for? I will of course engage a lawyer now, but I’d like to understand the general big picture first.
    The top floor flats have skylights but those aren’t demised (shown on plans) and aren’t the only source of lights to the rooms. And in any case, the planning officer already concluded there won’t be sufficient loss of light to them to warrant rejecting the application. Of the other things the leaseholders may choose to object to is that scaffolding would have to (partially) stand on their demised terraces; and that I may have to temporarily disconnect their air conditioning and heating, which are currently positioned on the flat roof.


    #2
    I suggest that you check your existing long leases to see what rights you have granted for plant on the roof and terraces. I wonder how long the skylights have been there and whether there was ever a licence or whether the leaseholders just punctured the roof and put them in wihout consent - a bit unlikely perhaps. I have much experience of rooftop development and I would suggest that you devise ways to work round your leaseholders to avoid getting bogged down in claims of any sort. Planning might give you the right to build but it doesnt give you immunity for claims whether nuisance based or valid

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      #3
      Thanks.
      The building is from 2005 and the skylights have always been there - just not shown on any plans. Same goes for the plants (i.e. the heating/air-conditioning intake units) on the roof.
      When you recommend that I work around the leasholders, what’s the best approach? Given they already expressed their strong opposition to the plans, they are unlikely to be very sympathetic towards the development.
      How much could their claims be worth, ballpark? There are 2 leaseholders on existing top floor, each flat worth about £1mln.

      Comment


        #4
        Threads like this just go to show that reform of leaseholds is well overdue ........................

        Comment


          #5
          The first thing to appreciate is that planning law and landlord and tenant law are two distinct things. However, the fact that planning permission has been obtained is likely to be persuasive in rebutting at least some of the leaseholders' objections.

          Matters requiring consideration include:

          Is the column of air above the flat roofs included in the demises of the top floor flats? If expressly excluded that settles it. Otherwise, section 62(2) of the Law of Property Act 1925 may come into play - see here. The position is not so clear as it would be if the top flats had an attic, but the possibility that a judge would find the space above is included cannot be ruled out, especially if the leases are for 999 years. It comes down to the terms of the leases and layout.

          The fact that the amount of light in the top flats will not be reduced is not a sufficient reason to block the skylights. Although not expressly demised they may be included. Apart from that, if the skylights are removed the leaseholders will not have what they bargained for: flats with skylights.

          Leaseholders have to be prepared to accept some disruption if essential repairs are carried out. Development, however, is different. A leaseholder's demise (including rights granted) is sacrosanct except to the extent that the lease provides otherwise. The erection of scaffolding and disconnection of air conditioning and heating installations are likely to require the leaseholders' consent. The works are likely to involve noise and dust over a significant period.

          How are the proposed flats to be accessed? Any new access must not encroach on any demise or other affect the amenities.

          A judge will also consider whether the structural integrity of the building will be affected and its amenities reduced. As suggested above, the fact that planning permission has been granted should address that at least in part, but the judge can consider factors that a planning authority does not have to.

          The overriding consideration is that a landlord must not derogate from his grant. The leaseholders must not be left with something different from what they were granted or have the enjoyment of their property interfered with.

          It may come down to devil in the detail. You need to consult a landlord and tenant specialist lawyer providing him with copies of the leases and detailed plans so he can advise fully.

          Comment


            #6
            When I say work round your leaseholders, I mean find a place for the plant to go in your new roof. The rooflights seem quite problemmatic. If they were there when the leases were granted I would say that there is a right to the benefit of them even if they are not shown on the plans. Try to find the sales details from 05 if you can..

            Comment


              #7
              Thanks both for replies. The rooflights do seem to be the largest obstacle, which is also what a specialist solicitor suggested to me in an initial chat (I haven’t hired him yet).
              I expect the freeholders to be difficult. Can they use the rooflight argument to outright stop the development, or is there a level (of compensation payment) at which the court would be inclined to say their objections are no longer reasonable?

              Comment


                #8
                We did one where there were skylights and created a light tube that enabled the roof light to remain but was capped higher up with a similar type of window. So within the new flat there is a shaft from the roof down to the skylight

                Comment


                  #9
                  Originally posted by Lawcruncher View Post
                  The overriding consideration is that a landlord must not derogate from his grant. The leaseholders must not be left with something different from what they were granted or have the enjoyment of their property interfered with.
                  .
                  If the communal areas are reduced, albeit slightly we were advised, that opens up the possibility for a lessee to seek damages but not an injunction to stop the works unless, of course, it impedes access to the property. The damages that may have been payable in the case we sought advice on would have been be a couple of thousand pounds per lessee, and we were encroaching on a large communal garden which was used by 6 lessees

                  Comment


                    #10
                    Originally posted by gav11 View Post
                    Can they use the rooflight argument to outright stop the development, or is there a level (of compensation payment) at which the court would be inclined to say their objections are no longer reasonable?
                    Either they have the right or they do not. If they have it the court has no power to make them give it up however much compensation is on offer.

                    Comment


                      #11
                      Originally posted by sgclacy View Post
                      If the communal areas are reduced, albeit slightly we were advised, that opens up the possibility for a lessee to seek damages but not an injunction to stop the works unless, of course, it impedes access to the property. The damages that may have been payable in the case we sought advice on would have been be a couple of thousand pounds per lessee, and we were encroaching on a large communal garden which was used by 6 lessees
                      The courts have said that if you have property rights and someone interferes with them by building you are entitled to an injunction. Persons interfering with the rights of others must not assume that the courts will allow them to effectively compulsorily acquire the rights by going ahead and then asking the courts to fix the compensation. Exceptions will be if the interference is minimal and possibly if the person with the rights sits back and watches the building works progress. However, if the developer proceeds in the teeth of clearly expressed opposition or tries to steal a march (by for example doing the work while the owner of the rights is away) he runs the risk of having to reverse the works.

                      Comment


                        #12
                        Was there any negotiation, it looks like LL wants to push it through by legal force.

                        I imagine at least the top 2 'penthouse' LH will think they are on for loosing 6 figure sum for moving down some floors and they will fight as hard as you might expect.

                        I can see you having a very bumpy path ahead.

                        Comment


                          #13
                          Originally posted by Neelix View Post
                          Threads like this just go to show that reform of leaseholds is well overdue ........................
                          Quite.

                          Will the new builds be worth much given the new owners will know what sort of variety of stunts you might later pull? An intelligent buyer would run a mile.

                          Comment


                            #14
                            So the OP thinks he can close up existing roof lights, turn top floor flats into 2nd floor flats and not expect a fight.

                            Arrogant twat.

                            At the very least I think the OP needs to offer to buy both of the top flats ................

                            Comment


                              #15
                              Originally posted by Neelix View Post
                              So the OP thinks he can close up existing roof lights, turn top floor flats into 2nd floor flats and not expect a fight.

                              Arrogant twat.

                              At the very least I think the OP needs to offer to buy both of the top flats ................
                              Not sure it would turn them into second floor flats if they are already on the 9th.
                              The tenants may be able to excercise the right to collective enfranchisement though now the OP has consent it may be beyond their means.
                              I have a flat in a similar predicament and we managed to get the planning refused but we are expecting freeholder to come back under new permitted development rights and go for 2 storeys
                              Outrageous.

                              Comment

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