Extending on demised land

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    Extending on demised land


    I've recently purchased a share of freehold basement flat which among the demise includes the front garden, driveway down the side of the property and rear garden. The freehold is owned in an equal 4 share split with the owners of the other flats. Aside from right of access to the meter boxes via the front garden and access to the rear of the property through application or emergency we have sole use - and as mentioned the surrounding land is completely under our demise. The other flats are accessed via a separate path leading to the center of the property (we gain access through our own 'front door' down the side of the property accessed via the driveway).

    We are looking to extend out onto the driveway at the side of the property (leaving access to the rear garden via a newly created passage). 3 out of 4 freeholders are fine with us extending but one freeholder (who rents his top floor flat out) is asking for compensation. We are virtually leaving the flank wall intact building a shell around the existing front door.

    We do need permission from all lessors to proceed, but my questions are - does the owner have a right to demand compensation ? As the land is demised to me it shouldn't affect the value of the freehold at all - in fact it will increase the overall value of the freehold I would have thought.

    I've only been doing some internet research but isn't it against the Landlord and Tenant Act to profit from unduly restricting or resisting granting permission. Any advise would be very much appreciated.

    If your extension results in any work needing to be done to the fabric of the building (which belongs to the freeholder company), then you will usually need permission from the freeholder as leases normally require this. From what you describe the work will at least require some type of dovetailing brickwork into the existing building.

    So, can the one freeholder demand compensation if the remaining others agree to grant their permission (assuming you need it)? It depends what it says about decision making in the articles of association of your freehold company. I would guess that if a simple majority say yes it's fine. If that's the case then it's tough luck, the board resolution is carried.

    Afterthought: it is potentially more complicated than I made out because the question will be: will the brickwork of the "new" extension become part of the freeholder's demise or yours? The freeholder currently owns all the brickwork holding up the building, with your demise extending only to the inside plasterwork. And it is in your interest to have it that way to prevent your upstairs neighbours knocking down supporting walls. So I believe you will need a solicitor, because there is a chance amendments need to be made to one or more of the leases.


      Dominic has got the gist of it.

      First you don’t have share of freehold( no such thing) the company owns the freehold, and you have 1 of 4 shares ion that company
      Second you own a lease and what you own is key to this when you refer to demise.

      In most leases you will own the plaster and internal walls, however unless in this case you also own the external wall it is not yours to alter it is the freeholders (and no you are not the freeholder or a SoF, the company is). Now you see why the distinction is important and SoF a lot of horse poo.

      If the exterior area is within your demise and its use is not restricted or limited (and they usually are) then it is likely that it is yours to develop, hold on, as

      1. It may then be subject to a covenant that requires consent, which cannot be unreasonably withheld and subject to professional fees

      2. Apart from dovetailing into the wall, and it is possible not to do that, you will likely need an entrance so unless there is an existing door way or you don’t mind crawling through a window, and any services will not cross between them via the external wall, then the freeholder can block a useful extension.

      3. The problem as always is the roof and getting a waterproof joint that prevents damp getting into the existing or new structure. In this case you might be able to argue that the roof connection is simply a party wall matter.

      Please read the above carefully as you will see that what I have said has multiple conditions, so please do not
      A seize on the bits you like
      B “so what you are saying is..” I have said what I have said, so please don’t try and ram it back into how you “thought it would be”.

      Dominic has also explained that the enlarged premises will have to be maintained and therefore it must be yours to maintain or become part of the freeholders retained premises.

      In either case the increase in floor area will have oi be reflected in service charges for shared costs such as insurance.

      Your lease will have to be varied to include the new premises, who looks after it, a new plan and a new SC percentage.

      When it comes to the external wall or a covenant against development it is at the freeholders discretion as to whether to give consent to vary the lease and to alter their wall and a simple vote will suffice. However the dissenter may claim that the company is in breach of it's covenant to him for say quiet enjoyment with the change in use of the area or noise and disruption, or that the covenant not to alter benefited him and that this is a material detrimental change and he might seek an injunction or damages.It is therefore important to check all the leases.

      In these cases if the outside needs painting or the drive a make over, it is best to offer to do that as a peace offering, and better than handing over tax on the premium to HMRC (boo)
      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.


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