Freehold consent for extension

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    Freehold consent for extension

    Hi- hope someone can help with advice.

    Situation:
    I own a garden (sole-use of garden) flat in converted terrace house. I have a share of freehold split equally between all of the flats in the building through a management company that each flat owns an equal share of.
    I want to make a small extension into my garden.

    My understanding of my lease which states in Schedule 3 (The Lessee's Obligations)

    Not to cut maim alter or injure any parts of the Premises nor to make any structural alterations or additions of any kind to the Premises without the consent of the Lessor such consent not to be unreasonably witheld

    Therefore I have to gain consent for the works from the management company that the flats own.
    Currently one of other owners is plannning to 'withhold his consent' and the remaining owner, not wanting to take sides and risk his relationship with either party is abstaining from the decision- resulting in my vote to give consent, one vote against consent and one abtaining vote. Stalemate.

    My questions:
    1. What is 'reasonable' in terms of withholding consent (I have read many posts about various 'landmark' legal cases- I was hoping that someone might be able to give specifics ie noise, change of view, possible devaluation, loss of tenant income due to building works etc etc)

    2. What are my options if the current stalemate persists to get the consent
    that I need to proceed?

    3. If court / arbitration is the only solution- is my case against the whole freehold management company (of which i am a shareholder) or the individual shareholder who is withholding their consent?

    Many thanks

    #2
    If the freeholder doesn't agree then you have the option of applying to the court under s53(1)(b) Landlord and Tenant Act 1954 - if you think that withholding of consent is unreasonable. Although the freehold is also part owned by you as a shareholder in the mgmt co, it is a separate legal person hence you can take action against it - that said there might be other mechanisms available, hopefully someone with knowledge of freeholder mgmt co's will chip in.

    Has the objector given any reason for withholding consent? If not, then when you make an application to the court (Civil Procedure Rules Part 8), the freeholder has the burden to prove the reasonableness of his objection.

    If he does give a reason then you have the burden to prove unreasonableness.

    The case reference you need is Iqbar v Thakrar [2004] EWCA Civ 592. A refusal to give consent will be unreasonable if:

    - The reason does not relate to the freeholders interests.

    - The effect of refusal of consent would affect the LH to a significant degree but consent would only have a minor effect of the FH.

    - The loss of the landlord would be purely pecuniary (monetary loss) and could be compensated for.

    Each case is judged on the facts using a 'reasonable landlord' test, hence it will be difficult to find an exact list to help you.

    What are the other leaseholders objections? Is there any way the extension could confer a benefit on the other leaseholders, through access to a roof terrace, etc or compensation (if there is any actual loss or devaluation). Once it is clear you are going to take action (if you have grounds) then the others might changed their minds when confronted with paying legal fees for a case they will probably lose.
    caveat emptor
    If it sounds like I know what I am talking about........I don't.

    Comment


      #3
      Thanks Wight Knight,

      very useful- thanks for the case reference, I'll have a look.

      Everything is still in an 'informal' state at the moment as I am yet to formally apply for consent. I guess, as you say it's not for me to decide whether the objections are reasonable- as , to me they prevent me from extending as I want, so they are always going to be unreasonable to me !
      The only benefit that I think could be conferred on the objector is that as part of the extension I would spruce up and redecorate some of the common areas of the builiding, therefore hopefully improve the value of everyone's property. My feeling is that the objection is based around the fact that I will probably ultimately use my garden more due to improved ready-access to it and thus in the objector's mind that will increase noise at rear of the property.

      Comment


        #4
        Sorry White knight but that is incorrect, he doesn't. The 54 Act isnt relevant here, its the 27 Act, if at all, with 54 Act only making it clear who would deal with such a claim.

        First you don't have a share of freehold and no such thing exists. You have a lease and a share in a company that owns the freehold.

        Second what you can alter depends entirely on the definition of premises in your lease and what the reserved parts are, the bits of the building and exterior, which are the freeholders ( the company).

        if for example the walls to the building are not demised to you and only the plaster is yours, or the garden is solely the grass and soil and no rights to the air space or underlying ground, then they are not yours to alter, even if you want to....

        So that where you start with an understanding of what is yours what is the companies and what rights over the garden you have. "But I paid for it" aren't rights,read your lease.


        If we accept that they are yours to alter then it is for the company to make a decision by voting as the articles describe on whether to refuse consent in which case then you can look at litigation but I would suggest you are better off money wise asking for mediation (in which will flush out what the objections are) or even arbitration under the lease.
        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


          #5
          Hello - I have the opposite problem my new neighbours want to build a 3m extension underneath our living room windows. They do not own the external walls under the lease. The lease contains two provisions one states that the leaseholder must not cut, maim or injure any structural walls, roofs or parts, and the other states that the leaseholder must not effect any structural alterations without the freeholders consent. I struggle to think what structural alterations would be possible without cutting/maiming etc any structural wall/part. We suggested a roof terrace but they refused and have obtained a plan in permission which specifically prohibits the use of their roof as a roof terrace. Are the freeholders able to deny consent? Are the risks to the building, the disruption during works and the impact on our flat which would lose out on the view and effectively become devalued be reasonable grounds to refuse consent? Or de we have an absolute right to refuse since they do not own the external/structural walls? I look forward to hearing from. Many thanks!

          Comment


            #6
            yes, freeholders can refuse consent to alterations and you should all sign some letter and send it by registered post to the new leaseholder.

            Comment


              #7
              If the external walls are outside the demise, rather than simply outside the repairing obligations, this is the same as one neighbour in a row of detached houses wanting to to extend into another's garden. The other neighbour can object and/or charge a premium.

              Also, there are no permitted development rights, so both the freeholder and the other leaseholders get a chance to object to planning permission.

              Comment


                #8
                The demise only includes the interior of the flat hot ot the plaster on the walls but does not include the external and load bearing walls - is this enough for us to refuse consent?

                Comment


                  #9
                  I believe so.

                  Comment


                    #10
                    Just to be clear the garden grounds are demised to them

                    Comment

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