Access to my garden for upstairs neighbour's loft conversion

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    Access to my garden for upstairs neighbour's loft conversion

    Would appreciate any thoughts or advice from the forum on this matter.

    I own the garden flat in block of 4, share of freehold equally split. Top floor neighbour wants to do loft conversion and build an extra floor on closet wing (roof terrace belongs to freehold).

    I am not in favor of the works for several reasons. the other 2 flat owners are unsure but discussions ongoing.

    My question is, if the other flat owners agree to it, am I bound by that decision? Also, even if they do agree to it, is permission to access my garden, particularly for scaffolding for 4 months, necessary from the top floor flat and can I decline?

    I don't understand my lease but have pasted a section below. There is a later section called Exceptions which I could post later if useful, and a quiet enjoyment clause. Is there anythig else I need to look for?

    Thanks for any help.


    Repairs to other flats: Permit the lessors and each tenant of a flat in the Building with or without workmen and all other persons authorized by any of them at all reasonable times by appointment (but at any time in case of emergency) during the said term to enter into and upon the Demised Premises or any part thereof for the purpose of repairing or altering any part of the Building or executing repairs or alterations to any adjoining or contiguous premises or for the purpose of making repairing maintaining supporting rebuilding cleansing lighting or keeping in good order and condition the Common Parts and all roofs foundations damp courses tans sewers drains pipes cables watercourses gutters wires party or other structures or other conveniences belonging to or serving or used for the Building or any part thereof and also for the purpose of laying down maintaining repairing and testing drainage gas and water pipes and electric wires and cables and for similar purposes and also for the purpose of cutting off water to the Demised Premises or any other premises in the Building in respect whereof the tenant or occupier shall have made default in paying his share of the water rate the Lessors or the tenant so entering or authorising entry (as the case may be) making good all damage occasioned to the Demised Premises.




    #2
    There are three questions here. My answers assume that there is no trust deed or other document which regulates how the freeholders must act.

    1. Do you have to grant the top flat owner an extension to his lease if the roof terrace is not included? The answer to that has to be "no" because all the freeholders would have to join in the deed.

    You do of course need to be sure that the roof terrace is not included by operation of law. See this thread: https://forums.landlordzone.co.uk/fo...-in-the-lease=

    2. If the extension is granted, or if it is not, the top flat owner wants to do alterations which do not include an extension, can the freeholders decide on a majority vote? No. The decision has to be made on the merits of the proposal considered objectively.

    3. If permission is given to carry out works which require access to your garden can you decline to give it? No. The extract from the lease you quote says you must grant access for repairs and alterations. A further question though is whether access extends to erecting scaffolding. If essential repairs were needed which could only be carried out safely by erecting scaffolding then you would have to allow it. I am not so sure about alterations. I am inclined to think that different considerations should apply given that alterations are not essential.

    Comment


      #3
      Originally posted by Lawcruncher View Post
      There are three questions here. My answers assume that there is no trust deed or other document which regulates how the freeholders must act.


      3. If permission is given to carry out works which require access to your garden can you decline to give it? No. The extract from the lease you quote says you must grant access for repairs and alterations. A further question though is whether access extends to erecting scaffolding. If essential repairs were needed which could only be carried out safely by erecting scaffolding then you would have to allow it. I am not so sure about alterations. I am inclined to think that different considerations should apply given that alterations are not essential.
      And if sampsam says no and doesn't allow access - what is the course of action ?

      Comment


        #4
        Originally posted by Anna1985 View Post

        And if sampsam says no and doesn't allow access - what is the course of action ?
        An application to the court for an order to allow access.

        Comment


          #5
          Originally posted by Lawcruncher View Post

          An application to the court for an order to allow access.
          Thank you. Is it this form?
          http://hmctsformfinder.justice.gov.u.../n244-eng.pdf?

          Still leaves with the question of costs and what happens if the court order is not being complied with?

          Comment


            #6
            Originally posted by Anna1985 View Post
            Pass, as I was never a litigator.

            Originally posted by Anna1985 View Post
            Still leaves with the question of costs and what happens if the court order is not being complied with?
            That applies to all litigation.

            In a case like this you want to avoid litigation.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              1. Do you have to grant the top flat owner an extension to his lease if the roof terrace is not included? The answer to that has to be "no" because all the freeholders would have to join in the deed.

              You do of course need to be sure that the roof terrace is not included by operation of law. See this thread: https://forums.landlordzone.co.uk/fo...-in-the-lease=
              This would seem to be the most important thing to address first.

              If the leaseholder who wants the extension doesn't either already have the right, or doesn't have the agreement of all others who hold a share of the freehold (where needed because they don't have the roof and airspace included in their lease or by legal precedent), there is no need to consider their right to any access to construct the extension.

              If the others with a share of freehold do agree to allow the extension, they can also insist on the leaseholder who wants the extension taking on reasonable responsibilities above what the leases currently state as part of that agreement, for example, it would be reasonable for them to assume full responsibility for all costs involved with maintaining the extension, and perhaps even a larger part of the roof to take into account the fact that they would be altering the original structure.

              Comment


                #8
                Lawcruncher,

                Cheers for replying. i am in the dark about the points you raise so need to find out more.
                Is there always a trust deed or freeholder agreement? I will ask the director of the freehold managment company for a copy (one of the share of freeholders). I assume this will set out how all freeholders have to come to an agreement about such issues, i.e. whether agreement form all needed or majority vote.

                1) I don't understand about extension to lease as the lease is 999 years. They mention about varying the lease and adding the rest of us to it (part of the roof terrace would remain a communal area but now indoors and the top floor flat would build on this). If the other freeholders agree and I don't, can they vary the lease and just not include me in it?

                2) That could be good or bad given the other freeholders are veering to saying yes. I might be the only one objecting. The bulk of the plans are solely of benefit to one flat only. There is no benefit to my flat

                3) I am confused about the lease wording as the paragraph starts with "Repairs to flats" so can it be argued that the text refers to repairs and alterations that are necessary rather than elective? I have given access to garden many times, including for scaffolding for a month for roof repairs and external painting, all of which is for the good of the property and mandated by the lease. But 3-4 months of scaffolding for a loft extension is quite a different thing. How can I get more clarity of this lease term?

                Comment


                  #9
                  Macromia,

                  Thanks, that does seem to be the first step as if the other freeholders refuse permission, then access to my garden is not needed. To clarify, they want permission to build in the roofspace for a loft extension and ALSO permission to build a single story extesion on the roof terrace which is a closet wing (jointly owned by freehold I think and is currently a communal roof terrace that some tenants have used in the summer)

                  I asked because i think they are leaning to giving permsission making me the only objector so I wanted to know if at the next stage - access to garden for 4 months - could also have impact if i decline.

                  Good point about asking for additional costs, perhaps also service charge as the new loft extention flat would be increased in size.

                  Comment


                    #10
                    I think you need to rephrase your objection. There are 3 things in my view:
                    ​​​​​- once the property is extended there will be an uplift in value of the property - so generally the freeholder should partially benefit from the uplift in value. So what is offer on a table?

                    - it is reasonable for the person benefitting to pay for the maintenance of extended area - i.e. if the roof is extended - your leaseholder pays for all the maintenance for the roof and newly extended area.

                    - as you are the one who cannot enjoy your property - what is the compensation for the inconvenience?

                    I would start with p2 and P1 and then go on to 3

                    Comment


                      #11
                      Anna1985, thanks, these are good points and I will raise.

                      Comment


                        #12
                        Hi again

                        Would anyone have any guidance on what is a reasonable percentage for freeholder to ask for in terms of any increase in value to their flat? Is their legal guidance or past examples?

                        Comment


                          #13
                          Originally posted by sampsam View Post
                          Cheers for replying. i am in the dark about the points you raise so need to find out more.
                          Is there always a trust deed or freeholder agreement? I will ask the director of the freehold managment company for a copy (one of the share of freeholders). I assume this will set out how all freeholders have to come to an agreement about such issues, i.e. whether agreement form all needed or majority vote.
                          There is not always a document regulating how the freeholders decide issues if they are individuals. In the case of a company the memorandum and articles of association may say, or there could be a shareholders' agreement.

                          Originally posted by sampsam View Post
                          1) I don't understand about extension to lease as the lease is 999 years. They mention about varying the lease and adding the rest of us to it (part of the roof terrace would remain a communal area but now indoors and the top floor flat would build on this). If the other freeholders agree and I don't, can they vary the lease and just not include me in it?
                          If you increase the area to be included in a lease (or extend its term) the document which does it is a lease whatever it is called. It creates a tenancy of the part to be added. Strictly, you should only talk about varying a lease if you are making some change which does not involve the area included or the length of the term.

                          Originally posted by sampsam View Post
                          2) That could be good or bad given the other freeholders are veering to saying yes. I might be the only one objecting. The bulk of the plans are solely of benefit to one flat only. There is no benefit to my flat
                          No comment.

                          Originally posted by sampsam View Post
                          3) I am confused about the lease wording as the paragraph starts with "Repairs to flats" so can it be argued that the text refers to repairs and alterations that are necessary rather than elective? I have given access to garden many times, including for scaffolding for a month for roof repairs and external painting, all of which is for the good of the property and mandated by the lease. But 3-4 months of scaffolding for a loft extension is quite a different thing. How can I get more clarity of this lease term?
                          The headings of a clause are only to make it easier to find what you are looking for in a long document. They do not affect its interpretation. Whether repairs and alterations can be distinguished when it comes to scaffolding is a question which can only be answered with any degree of confidence if there is a case on the point. When making my first post I did some Googling but was unable to find such a case. That does not mean there is not one. In the absence of a case, if acting for you I would argue that repairs and alterations have to be distinguished because repairs are necessary but improvements are not. I would point out that the distinction is made by the Access to Neighbouring Land Act 1992.

                          Comment


                            #14
                            Originally posted by Anna1985 View Post
                            ​​​​​- once the property is extended there will be an uplift in value of the property - so generally the freeholder should partially benefit from the uplift in value. So what is offer on a table?
                            The idea that when a tenant improves a property the landlord is entitled to a percentage of the enhancement in value is a common misconception which needs to be knocked firmly on the head. The tenant does not have to pay for his improvements twice. The value of the landlord's reversion is increased in any event. Of course in the case of a 999 year lease the increase is purely theoretical as the building will not be around in 999 years time - further ahead in the future than the Battle of Hastings is in the past.

                            Originally posted by Anna1985 View Post
                            - it is reasonable for the person benefitting to pay for the maintenance of extended area - i.e. if the roof is extended - your leaseholder pays for all the maintenance for the roof and newly extended area.
                            Agreed . either that or their share of the maintenance is increased and of the other flats decreased

                            Originally posted by Anna1985 View Post
                            - as you are the one who cannot enjoy your property - what is the compensation for the inconvenience?
                            If it is a case of purely access then no compensation can be demanded as the lease provides that access must be given. If access is held not to include the right to erect scaffolding in the case of alterations then compensation can be demanded.

                            There are of course other aspects which need considering, but for the moment we are just interested in what rights Sampsan has.

                            Comment


                              #15
                              Originally posted by Lawcruncher View Post

                              The idea that when a tenant improves a property the landlord is entitled to a percentage of the enhancement in value is a common misconception which needs to be knocked firmly on the head. The tenant does not have to pay for his improvements twice. The value of the landlord's reversion is the increase is purely theoretical as the building will not be around in 999 years time - further ahead in the future than the Battle of Hastings is in the past.
                              Thank you for clarification. I was under impression that if the loft doesn't belong to the leaseholder, there is a consideration to be paid to the freeholder.

                              Comment

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