Retrospective consent

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    Retrospective consent

    Hello, back for some advice please
    A previous leaseholder did a couple of alterations without getting freeholder consent.

    One of the alterations has made a bit of a mess of the outside wall and it does concern me it may not be sealed up properly. Other than that I don't have concerns about the alterations as they were improvements.

    New buyers have asked current leaseholder if I can give retrospective contest.

    What does this entail?

    Are there any consequences for me giving retrospective consent?

    Should I charge a fee, how much?

    If it helps the sale go thru I'm happy to help, just want to make sure I'm doing it all correctly.

    Advice please

    Yep freeholder should charge a fee and need to be satisfied the work is completed to a professional standard or you may be held liable for any consequential loss, such as damp issues


      Originally posted by Section20z View Post
      Yep freeholder should charge a fee...
      Perhaps - but how that fee is decided depends very much on the circumstances.

      It is, of course, reasonable for a freeholder to cover the costs of any expenses that they may incur and, in this case, it sounds like inspection by an appropriately qualified professional may be required, with the leaseholder agreeing to pay both the cost of inspection and the cost of any recommended works before any retrospective consent is granted.
      It's also reasonable to expect the leaseholder to cover any solicitors costs involved to make the consent official, and for any alterations that may be required to leases.

      Whether any other fees are reasonable, with the exception of some small amount to cover the time that the freeholder will have spent considering the matter, depends very much on the type of alteration and what the terms of the lease say.


        Or just sue for breach and get the wall , that they shouldn't have touched in the first place, reinstated.


          When was the work carried out?


            One alteration was about 10 years ago, (can't fully remember but I can check paperwork if it's important) the other was 2017.

            Thanks for the advice so far


              At least some of the works were carried out less than 12 years ago and so are not covered by limitation.

              You indicate a possible problem so you need to be careful about giving retrospective consent or (to be strictly correct) waiving the breach of covenant. Apart from anything else, you do not want a claim from another leaseholder.

              The starting point here is that you have no obligation to do anything. There has been a breach of covenant (doing work without consent) and a landlord is under no obligation to waive a breach of covenant. That means you can set the terms for waiving the breach. However, you ought not to be unreasonable because it is open to the leaseholder to apply to the court for a declaration that the breach has been waived by conduct, that is a failure to take action within a reasonable time and/or standing by while the works were carried out.

              I think you can offer the leaseholder two options.

              One is to say that you will, at the leaseholder's expense, execute a deed of waiver if he produces a surveyor's report that the works were properly carried out and present no risk to the building.

              The other is to say that you will sign a letter indicating that you have no intention of taking enforcement action at the present time, but reserve the right to do so if (a) it appears that the works have caused or may cause damage to the building or (b) if another leaseholder in the building takes action against you or requires you under some right he has to take action in respect of the works.


                Thank you Lawcruncher, very helpful

                Which of the 2 options you gave would be the better one for me to choose?


                  Since you basically have no issue with the alterations, but are concerned you ought not to do something which may have a comeback, I do not think it matters from your point of view. You are offering the leaseholder a choice of a cheap way out which is not entirely satisfactory and an expensive way out which will prove satisfactory if the surveyor does not find a problem. The purchaser may of course insist on a full waiver.


                    The new buyers have given the current leaseholder a copy of the home buyers survey to pass on to me.

                    Should I accept this or should I insist on an independent inspection. Is this something I need to organize or should I ask the new buyers or current leaseholder to sort it out and I'm assuming they pay for this as well.

                    I would like to ask for a fee for my time but I have no idea what that amount should be, I want to be fair so could anyone point me in the right direction of what is acceptable to ask.

                    I have been seriously ill with covid (nearly didn't make it) and I'm finding this to be a lot of added stress!


                      Have a look at the report and see of it says anything which covers the position. If it does and says there is no problem you will be in the clear. If it does not say anything, since a surveyor has already inspected the property the things to do is to get the buyer to ask the surveyor to address the points at issue and offer an opinion.


                        I've just managed to read the report and take it all in and some of it is quite shocking to be honest. It suggests further inspection as an urgent matter which I don't think has been done.

                        I have decided to get my own inspection carried out.

                        Would this cost be for the new buyers or the current leaseholder?

                        Thank you for your help Lawcruncher


                          It is a bit tricky to say where you go from here as you have not said what problems the report reveals. However, what you have is a report prepared by an expert paid for by someone who wants to know if there are any problems. I do not think that a second report can be justified, at least not at this stage.


                            One of the breaches was to do with a new boiler being installed. I have no problem with a new boiler, however I don't believe it was installed by a registered engineer and I don't think the hole around the flue was sealed up properly. My wall is pebble dashed of which a big chunk is missing, it was damaged when they drilled through the wall.

                            The report when referring to the boiler says 'this is a risk to the building and persons' (which I found shocking) and has advised a gas safe registered engineer to inspect because there is no evidence of an installation inspection in the last 12 months and advises this should be done before exchange of contracts. The report also mentions the boiler should have either Building Regulation approval or have been fitted by a registered installer with the relevant conpetences, none of which I have seen.

                            The current leaseholder has provided a gas safety certificate which was done September 2020 but the companies name has been torn off so I'm not sure I want to trust it. I have to allow access round the side for anyone to inspect the hole but no-one has asked so I can therefore assume it has not been inspected.

                            Do you think it is now ok for me to ask for an inspection of the boiler by a registered engineer so I know that it is safe. I'm not too bothered by the missing pebble dash but I would like to know that the hole is properly sealed.

                            Who pays for this?


                              Yes, ask for the gas safe registered engineer report and also advise that the damage to the wall should be fixed.


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