Leasehold Alterations for some despite the existence of an Absolute Covenant

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    Leasehold Alterations for some despite the existence of an Absolute Covenant

    I am a recent joiner to Landlord Zone having perused the forum for many years attempting to find the solution to a leasehold conundrum where if I proceed with the same alterations as carried out by other leaseholders, that despite the ‘breach of covenant’ horse having already bolted with several Apartment owners on its back, the stable door is being firmly slammed shut in my face with the threat of forfeiture.
    It would be much appreciated if any forum user can suggest a course of action to remedy what appears to be a situation where other leaseholders have breached the covenant recently and have continued to peaceably and quietly enjoy that benefit without any threat or fear of forfeiture.
    It all appears very arbitrary and unjust, and I consider it reasonable to feel aggrieved by the anomalous use of the lease covenants, where Legal commentary after Duval v Randolph 2020 case suggests that the Freeholder by allowing the others is actually in Breach of mutually enforceable Covenants themselves.
    It is clear an absolute covenant has already been breached a number of times, suggesting a willingness to afford discretionary consent which avoids enforceability action, the implication here is that this amounts to a breach of the landlord’s quiet enjoyment obligation by a derogation from grant towards myself holding a similar lease.

    I have been granted planning permission for the works (easily obtained as others set precedent), am not a member of the existing RTM which refused alterations consent (RTM members have undertaken alterations / breached covenant), and the large nationwide Freeholder has simply agreed with their refusal stating that mine is the only application ever to be escalated to the Freeholder for consent and “For the avoidance of doubt, I can confirm that the ********* Properties does not grant consent, and, furthermore, if these works proceed you will be in fundamental breach of your lease and the appropriate action will be taken (including s.146 forfeiture proceedings, and contacting other concerned parties including ****** Bank PLC”).

    Many thanks in advance to any forum member who can suggest where remedy may be sought.

    #2
    Looks like your mistake was asking for consent, not much you can do now.

    Comment


      #3
      Thank you for your response, It does appear it was indeed a mistake to follow the proper process, though in my defence others claim they were given permission for their works.by the Freeholder who stated for one of these "In the circumstances and as we feel that there will be little visual impact we are not minded to take matters further. There is no lease variation merely a breach of covenant which is no longer actionable because of the permission granted"
      So contrary to what the Freeholder claims in my initial post, permission does get granted for works which are then downplayed as merely a breach of covenant.
      To add further insult to injury when I first approached the Freeholders agent I was informed that approval had to be sought before I could carry out the works and that the RTM had acquired that function, and at no stage did either indicate it would be refused.
      So whilst a mistake? was their any other option but to apply for consent?

      It appears to me that a can of worms has already been opened by the other works being done, and forfeiture ought really to be a threat to all leaseholders who have already breached the absolute covenant.
      All feels very personal and unjust and typical of the vagaries of a leasehold system where if in my case you follow the rules, it is you alone who suffer the consequences.

      Is there a route? through the First-Tier property tribunal to seek a determination on whether
      1. the Absolute Covenant is only merely breached by the Freeholder granting previous permission to another leaseholder
      2. and whether that in itself is a breach of the Freeholders obligation to uphold the quiet enjoyment covenant in my lease.

      I would not have considered my aspirations to carry out alterations, but for the fact that others have had permission and already breached the lease, though they have all gone very tight lipped on the detail surrounding these permissions / waivers of breach.
      Can this go to FTT for a determination? as a simple starter for seeking remedy?

      Comment


        #4
        Under the leasehold property system, the leaseholder is a long term rental tenant whilst the freeholder is the owner of the property. Usually the wording in the lease will not allow the leaseholder to make any structural alterations ( removing internal walls and doors etc.) .

        But if your proposed alterations do not include any structural alterations, there is nothing to prevent you "re-decorating".

        Comment


          #5
          Thank you Gordon999 for your reply, and I assure you that I have read the lease on purchase and would not have consider the project if others hadn't done works.
          What I have is an existing open porch structure into which I simply wish to insert a full height window within each side opening, and a set of French Doors within the front opening.
          The exact same installation has already been done by another ground floor leaseholder, and another completed structural glazing at penthouse level with a glazed balcony structure.
          The lease clause the Freeholder now says will be breached if I go ahead is
          "Not to make any structural alterations or additions to the Demised Premises nor carry out any development thereto"
          The existing open porch is part of my demised property and the window and door installation will be an addition (considered development by planning department and granted permission), all existing windows, doors and glazing is also demised, but from my research throughout the Landlordzone Forum I am unclear as to whether what my glazing contractor views as a simple minor installation, will ultimately be deemed structural if the Freeholder carries out their forfeiture threat.
          I know that they are prone to using a large forfeiture specialist solicitor firm based in Liverpool for their threat, and to have my mortgage company informed would prove extremely inconvenient to me right now.

          I'd appreciate opinion / or reference to relevant posts that may give some clarity as to whether my aspirations for this glazing amount to being 'structural alterations' sufficient to rebut any claim of breaching that covenant;
          or whether FTT can actually determine on the lease recitals I mentioned in previous post, where FTT appears a cheaper option to having a Freeholder rack up Barrister costs against me.

          Comment


            #6
            Lets start again. Why do you think this particular covenant is "mutually enforceable". Does the lease say you can take action (or get the FH to take action) in respect of this breach.

            There is nothing stopping a freeholder allowing only some lessees to breach a covenant that has no impact on other lessees in terms of their leases.

            Comment


              #7
              What size is the open porch area ? Does the porch face the main road ?

              What size are the 2 side frames ( with glass windows) ? What size are the french doors ?

              Comment


                #8
                If the side frames ( fitted with polycarbonate windows ) and french door frames are made removable, you would not need to ask for consent from the freeholder. because it is not an addition to the demised premises.

                Comment


                  #9
                  Many Thanks to both AndrewDod and Gordon999 for their interest shown.

                  AndrewDod - the underlease has a recital 6.5 which reads " UPON the request in writing of the Underlessor to enforce the covenants similar to those contained in Clause 3 hereof entered into or to be entered into by Underlessees of the other premises comprise in the Flats upon the Underlessee agreeing by deed to indemnify the Undelessor against all costs and expenses in respect of such enforcement and providing such security in respect of such costs and expenses as the Underlessor may reasonably require"
                  As a total amateur attempting to simply do what others have done (and Freeholder agreed to), I see the situation as being exactly as described in the Duval v Randolph case, and taking the following text from some legal commentary on the Supreme Court decision it appears to me that as works have already been undertaken by other leaseholders that breaches the covenant 3.8 "Not to make any structural alterations or additions to the Demised Premises nor carry out any development thereto", and as the Freeholder has already agreed to these previously, then:
                  the enforcement capability of 6.5 is defeated and 3.8 has lost its practical effect because the landlord has permitted and given other tenants of flats in the same building consent to carry out works in breach of that clause, and a benefit to peaceably enjoy these which is currently being denied to myself..

                  There are 32 similar leases in a purpose built flatted development managed by an RTM company, of which I have fallen foul of the Directors clique where others have installed glazing, added awnings and heaters, floored loftspaces etc, and as the only leaseholder to have been refused permission have encountered a situation where they have made direct contact with the Freeholder who has agreed with their refusal.
                  There have been many breaches of the lease under the management of the RTM which I believe have had ramifications for my underlease, where if I am interpretting the Duval case accurately it is difficult from a laypersons perspective to now envisage that the threat of forfeiture can exist solely for my flat, where others have breached the covenant previously without that threat, or that I should be denied the same benefit that they currently hold peacably and without that fear of the freeholder gaining a windfall.

                  Gordon999 - this development consists of 32 apartments described by the planning officer as having "a series of open and enclosed balcony areas and so I expect that the works will not be overly incongruous in that context as a result", with many balconies being enclosed as part of the original design. I have planning approval for works which are exactly as installed by another leaseholder (who was an RTM Director) back in 2015, with windows being 1120 x 2110mm and french doors 1980 x 2110mm, UPVC construction to match the existing aesthetics and at a cost of only £3,200 manufactured and installed (indicating the simplicity of these as minor works).
                  The new enclosed porch area will be roughly 8 square metres and will not become an internal part of the flat, but will become a barrier to driving rain which encroahes onto a finished slab level which sits above the damp proof course and at the air vents between existing brickwork.
                  The RTM and the Freeholder are well aware that the glazing will improve this situation.
                  The porch area faces out south westerly towards the open coast hence the desire to enclose and prevent water ingress.

                  I thank you both again, and am most grateful for any opinion given as to how I can proceed with the glazing as a simple solution to a long standing problem, and not forfeit my expensive lease (asset?) as a result.

                  Comment


                    #10
                    Gordon999 - I only saw your last post after submitting my own response to questions put previously.
                    What you have suggested appears to be the solution I have been seeking and I am sure that the UPVC glazing can be adapted to be considered removable if required at any time, and therefore a strong argument can be presented that there is no breach of the lease covenants on my part, which clearly cannot be said of the RTM / Freeholder and other Leaseholders.
                    many thanks for your time and interest in this matter, it is very much appreciated (also AndrewDod).

                    I will proceed with the installation and will update the post if any subsequent issues arise.

                    Comment

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