Would you deem this to need a deed of variation?

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  • Would you deem this to need a deed of variation?

    Would you deem this part of the lease requires a deed of variation?

    "Not to alter the internal or external planning or the height elevation or appearance of the Flat or at any time make any alteration or addition thereto to cut or maim or remove any of the party walls or the principal or bearing timbers or other supports thereof (otherwise for the purpose of repairing and making good any defect therein) or carry out any development thereto"

    Deed of variation to add to the above: "unless prior consent gained from Freeholder not to be unreasonably witheld".

    Apparently, even though I have always gained consent from Freeholder to carry out works e.g maintenance etc, the Freeholder, according to this lease, has no right to give consent!

    I am currently selling my flat and am now having to seek a deed of variation and indemnity building regulation insurance policy for all works carried out even prior to me purchasing, at the insistence of the buyers solicitor.

    Thanks in advance for your replies.

  • #2
    "not to carry out any development thereto"

    Sounds as though you have breached your lease.
    And this may prevent the sale.

    A deed of variation is not designed to get you out of the "SH -1t"
    for breaching the terms of the lease.( assuming you have altered
    load bearing walls, etc )
    All other leases would have to be changed as well, but doubt
    if the LVT would sanction such a change.

    maintenance etc is o.k, replacing your sink in same place
    would be o.k. etc etc.

    R.a.M.

    Comment


    • #3
      I think the buyer's solicitor is being a bit pedantic about this.

      Remember last week the case about the freeholder authorising wooden floors instead of carpet? I'd guess there was nothing about the freeholder being able to authorise this in their lease either.

      Surely if the freeholder has given you consent for alterations, the only one who could be sued for this not being the case would be the freeholder. (The lessees got off scot free last week.)

      Find another buyer. They will likely use a different solicitor who will likely find other things to moan about.

      Comment


      • #4
        Sorry to confuse, but no major works have been carried out - just maintenance such as guttering, soffits, repairing cracks in external walls, repainting etc, all with freeholder's consent and her paying materials whilst I arranged labour.

        The buyers solicitor is also picking up on a new boiler with flue before I bought the property, (2006), and the new windows I fitted even though the freeholder has given consent and I have FENSA certificates. On top of this, all works prior to me purchasing, in fact, all works that must have been carried out when the house was turned into two flats.......

        Comment


        • #5
          From what you say, it's only maintenence, and replacement of like
          for like, and no stuctural changes, so you have not violated the lease,
          if you have just replaced wornout boilers / windows and all in the same
          positions as original.

          You have not "altered", and a freeholder cannot refuse you replacing
          a none working boiler etc etc.

          Your "Maintenence" did not alter the layout, or the possition of anything,
          ( I asssume ) or suffer the building to become unstable, and you have
          confirmed to the covenant.
          Other than that, that's all you can tell the solicitor.

          It's always wise to give full details in posts, as the answers change
          depending on the information provided.

          Comment


          • #6
            Apologies ram.

            I am particularly aggrieved as if this is really necessary, why was this not picked up on when I purchased the property in 2007?

            The buyers solicitor states:

            Although I note there appear to have been various emails between the seller and the freeholder indicating there is no contentious issue, as the lease currently stands it is not possible for the freeholder to give consent to the alterations carried out. In the circumstances, we will require a retrospective licence for alterations to be completed simultaneously with the deed of variation referred to below. In fact the retrospective licence could no doubt be dealt with in the deed of variation. The retrospective licence must be general to include any works, but also must specifically include:
            removal of partitions
            removal of chimney breasts
            construction of back addition
            installation of windows
            installation of boiler

            Clearly these works would have required compliance with building regulations and assuming no completion certificates can be produced, please confirm you will hand over an appropriate buildings regulations indemnity insurance policy at your client's cost on completion. Please let us have a draft of the proposed policy for our approval.

            With regard to the deed of variation, as mentioned this is required and will need to deal with a variation of the prohibition on alterations, updating the freeholder's obligation to insure correction of the error/s mentioned in point 10 of my letter of 17 February and the retrospective licence referred to above. Please let us have a draft for our approval prior to agreeing the form with the freeholder's solicitors.
            Would a lender insist on this deed of variation, or is it simply the solicitor calling the shots?

            Sorry, am nearing the end of my tether with this as the wrangling has been going on so long now. I've even had panicked calls from the buyers!

            Comment


            • #7
              Originally posted by KMB5 View Post
              Apologies ram.
              Sorry, am nearing the end of my tether with this as the wrangling
              has been going on so long now. I've even had panicked calls from
              the buyers!
              No apologies required.

              I am not a solicitor, therefore my advice is general.
              But did you do :-
              removal of partitions ( could have been load bearing )
              removal of chimney breasts ( could weaken the wall )
              construction of back addition ( may not have planning permission
              or conform to building regulations. (WE on here, do not know )

              If so, then your solicitor is probably right.

              Iwould suggest you give instuctions to write a deed of variation,
              and get the piece of paper from the freeholder giving consent
              to the alterations, together with a small outlay for the insurance.

              Can be done in a week.

              The reason for freeholders consent ( one of the reasons ) is the
              freeholder has to ensure the building is safe, and maybe ( at the time )
              instructing surveyors to inspect the plans / drawings / estimates
              for the alterations to ensure everything is safe, and conforms to
              all regulations, and pass those cost on to the leaseholder.

              It looks as though this was not done by the freeholder, and he just
              said, o.k. go ahead, now leave me alone, am not interested in
              the formalities or legality ( regulations )

              It is easy for some one to read a lease and miss the
              "without the freeholders consent in writing" bit, so this probably
              happened when you bought, if some alterations were already done.

              Others reading your plight may have other suggestions .

              R.a.M.

              Comment


              • #8
                This is fairly simple, and is entirely different to the "last case" as posted above, in relation to floors.

                This covenant is a clear "you, the lessee, shall not" but you have.

                There is a strong argument that if the landlord was aware of the works and you have paid the ground rent and or service charge that they have waived the ability to forfeit this breach. If the landlord gave consent for the works then that too should be sufficient.

                The absence of building regulations also creates a doubt in their mind that a defect might be present which might re open the whole matter, with the landlord requiring rectification, re instatement, and given the clear NO in the lease a premium.. More importantly as the lease is clear


                A buyer would understnadalbly be concerned but knows that
                1: this would have to bes estalbished in court at cost or
                2: A far cheaper DoV.

                As this would have been required at the time( in order to sell at a future date) you had to get one sooner or alter.

                Frankly I would not agree to a with consent variation of the above, it should be limited to internal planning and non load bearing walls, the remainder should not be interfered with save for repair.
                Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                Comment

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