Freeholder's rights to erect scaffolding

[freeholder1]

Hi - would be grateful for any advice out there to help us resolve a legal matter over our building development rights.

We are the owners of an end of terrace 1st floor flat, and are looking to develop our loft space to build a new floor above our existing flat. Planning permission has been granted for this building work and we are the freeholders of both our flat and the property below. We are not, however, the leaseholders of that property below, and do not own the garden to the front or rear, which comes with the downstairs lease. According to the terms of the covenant between us, we have the right to access the front garden (for the purpose of having a space for our dustbins) and we have the right to access any area of the freehold land for the purpose of mainetance of any part of the property we're reponsible for (the roof, for example, but not the foundations). What the covenant is silent on, however, is our right to access the other leaseholder's land if we choose to develop our own leasehold land.

Does anyone know where we stand on this matter? The other point we looked at was our right of access via the terms of the Party Wall Act. Where we're building, though, is the loft space, so any walls involved will not be party walls - instead, they form part of the overall party structure of the building.

Any advice would be gratefully received! Many thanks

[Gordon999]

You need a solicitor to check the wording of all leases on access rights.

[freeholder1]

Thanks, Gordon. What if the covenant between us is silent on the matter of access for development? It looks like we've got access to the front - largely because they recognise we need somewhere to place our dustbin. Clearly we don't have access to their back garden, but if we were re-roofing the building, they'd have to co-operate on the grounds that we're the freeholder. If we're doing work for our own benefit, though - which is the nature of this loft conversion - do we risk being in the same situation as with any other neighbour? In other words, unless they agree to the scaffolding, we are trespassing on their property?

[leaseholdanswers]

The answer comes in 3 parts

!; the rights under the lease
2: The rights under The Access to Neighbouring Land Act
3: Any statutory or equitable rights, particularly those protecting the lower flat from noise interference etc.

Most of these issues are resolved by a simple discussion, consideration and the exchange of money...

And don't forge that your service charge or insurance proportionment might have to change to reflect the newer larger flat above, for example a 50.50 split might now be 2/3rd and 1/3rd.

[verylonglease]

Is your roof in good condition overall? Is it in need of any repairs (even minor) regardless of the loft conversion? If so, then you can say that the roof needs to be fixed anyway and scaffolding is required to carry out the repairs, which the leaseholder must accept per the terms and conditions of the lease. At the same time, take the opportunity that scaffolding is erected to get your loft conversion done. If the leaseholder is really picky, make sure you appoint a surveyor to report on the existing roof conditions to justify the presence of scaffolding.

[leaseholdanswers]

Nice try, but the statutory notice for planning consent might expose it as the trick that it is.