Freeholder withholds consent for internal alterations

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    Freeholder withholds consent for internal alterations

    I have just completed the purchase of a flat and would like to make some improvements:
    - lay wooden flooring throughout the bedrooms/living room.
    - knock through two internal walls to convert the kitchen/living to open plan.

    The internal walls in question are part of the demise and are non-structural, but need to confirm this with structural engineer.

    There are two clauses in the lease which I believe apply to my situation:

    + "The Lessee shall not make any structural alterations in the Premises nor shall the Lessee make any alteration (not being a structural alteration) without the approval in writing of the Lessor to the plans and specifications and shall make those alterations only in accordance with those plans and specifications when approved. The Lessee shall at the Lessee's own expense obtain all licences Permissions and other things necessary for the lawful carrying out of any such alterations and shall comply with all byelaws regulations and conditions applicable generally or the specific works undertaken."

    + "Not at any time to create excessive noise in the Premises and at all times to ensure that the floors of the Premises are covered with good sound insulating carpet or other floor covering."

    There are 4 directors in charge of the company which holds the freehold and after initial talks it seems clear they will not even consider any of my proposed alterations.
    One of the directors simply stated he will not consent because this "will encourage other tenants to go ahead and start knocking walls without proper approvals". Another reason was he didn't feel it was fair I should be allowed to make these improvements because he wanted to do the same back in '93 and was not allowed to. I am pretty sure these are all unreasonable points, but I'm not sure what the best course of action is.

    My assessment is there's little risk my proposed improvements are "unreasonable" but I may be wrong, as I have no experience whatsoever.

    My questions are:
    1) Does the first covenant fall under section 19(1) of the Landlord and
    Tenant Act 1927 in the sense that the freeholder cannot unreasonably withhold consent ?
    2) If 1) applies, am I right in stating my proposed non-structural improvements cannot/are unlikely to be denied ?
    3) Under the second covenant, my reading is I can go ahead and lay non-carpet floor covering as long as precautions are taken to make sure they are properly sound insulating - I'm prepared to use the best wooden floor underlying I can find.
    4) Can I use section 1 of The Landlord and Tenant Act 1988 to threaten seeking damages if the freeholder keeps ignoring me ?
    5) Is there a chance the freeholder can still unreasonably withhold consent by using The Landlord and Tenant (Covenants) Act 1995, considering my lease dates back to 1985 ? I don't think there's any binding agreement as to the circumstances in which the landlord may withhold its consent, but I think the '95 Act only applies to new tenancies.

    Thanks

    #2
    What floor flat are you?

    Comment


      #3
      The reasons offered by the directors are not valid reasons.

      As to your questions:

      1) No. Section 19(2). As with section 19(1) consent must not be unreasonably withheld.

      2) Not necessarily. If the Act meant that all non-structural alterations were allowed it would have said so. The proposals must be considered on their merits.

      3) The covenant is a bit ambiguous: Does it require that the floors are:

      A...covered with (a) good sound insulating carpet or (b) other floor covering.

      or

      B...covered with good sound insulating (a) carpet or (b) other floor covering.

      Whichever it is consent is not required. All you have to is to ensure, in the case of A, that the floor is covered with floor covering, and, in the case of B, with good sound insulating floor covering. Safer to assume it means B which it appears you are happy with.

      4) No. The Act only applies to alienation, that is assigning, underletting and the like. Alterations are no covered.

      5) The Landlord and Tenant (Covenants) Act 1995 has no relevance here.

      Comment


        #4
        Thanks very much Lawcruncher, this is very helpful!

        One thing is unclear to me though, how can it be that I don't need their consent to lay wooden flooring, when the initial covenant states I need written consent for any alteration. Wouldn't wooden flooring be considered an "alteration" ?
        Along the same lines, I'd expect I would need consent even if I plan to refurbish the kitchen or replace a water tap. Is there a legal definition of alteration that clarifies what it constitutes ?

        Do you know of any judgments I could read through regarding reasonable grounds for denial of consent with regards to the knock through of internal non load bearing walls ? I would like to get a grasp of the potential outcome...

        emwithme, the flat is on the 3rd floor.

        Comment


          #5
          Alterations are not things which are easily removable such as laying wooden flooring. If you put in concrete flooring this may be different

          As regards replacing fixtures and fittings with like for like, again I would not call this alterations because you don't alter anything. Refurbishing the kitchen may be varying - if you replace items like for like no consent required, but if you start knocking through walls or for example drill a hole into the external wall for a new vent then this would likely be an alteration.

          In any case, unless "alterations" has been specifically defined in the lease then it is likely that the court/tribunal will give it its normal everyday meaning. And remember, the freeholder would be the one trying to enforce the covenant, so any ambiguity would go against him as he was the one who drew up the terms of the lease (contra proferentem).

          Comment


            #6
            Wood flooring is not really wood flooring, it is a floor covering. The interpretation would be 3B , if well argued, relying on the intention of the parties argument, they would not have said that you need good sound insulating carpet or sawdust, which is a floor covering While it does not require consent, it leave you open to breach of covenant or nuisance if what ever you lay does not perform as well as good sound insulating carpet. One of the major problems of the devils floorboards are that no matter how good the underlying mat, carpets stop a lot of reflected noise in effect amplifying it and it sounds like the empty room. Add to that the fashion for hard blinds and hard leather furniture and surround sound and its a recipe for disaster. Add to that the loss of walls making it open plan......

            On balance I don't think that have a basis to refuse consent for the other works though they would insist on limiting demolish and fabrication operations to set short periods of work and for adequate arrangements for clean up and protection of the common areas.

            If you look in the FAQs there is section on this and tips as the better presented and thought out application, eliminating assumptions about where a builder can work and store his stuff are usually the ones that annoy. As below when it comes to legal action it also puts the balance of credibility in your camp.

            If you cannot agree then I would suggest that you ask for mediation or if the lease allows arbitration to settle the matter as you intend to sue under the 27 Act, and a lot of case law that says that you must give and they must take a reasonable time scale.

            as to starting a run of these then as its inevitable, suggest that this is the model they would use to set policies and procedures in future applications.
            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


              #7
              Thanks for the advice leaseholdanswers. Your FAQ on consent for alteration is very informative and gave me a good idea on how to proceed.
              I already lined up a structural engineer to advise and write a report on the nature of the walls (expect them to be non-structural; hopefully no surprise here, or I'll have to forget about knock-throughs). I will then draw up detailed plans of the remodeling with the assistance of the builders and clearly outline how I plan to conform to all the restrictions (working hours, storage areas etc.)
              Hopefully it won't go to court...

              Regarding the wooden flooring, I was wondering if there's any question with regards to wooden floors being defined as "floor covering". I put this same question (re floor covering covenant) to LEASE and they came back saying:
              "No, there must be some sort of floor covering. This is not to say you could not have wooden floors under the covering, though."
              I guess their view is wooden floors are not considered floor covering ..

              Comment


                #8
                Hi,

                new to the site and we just purchased a share of freehold property in London.
                We are currently locked in discussions with the Board of the Freehold Company (other flat owners) with one director who is also a company secretary seemingly running the building and the company.


                The lease says "Not without prior written consent in every case of the LEssor to pull down, alter or in any manner interfere with the structure or arrangement of the premises or in any manner deface or disfigure the walls or ceilings thereof or do anything that may weaken or destroy any of the walls, timbers, girders, beams or party or partition walls thereof"

                We are looking to raise a chimney breast and also extend a non structural stud wall in the kitchen. We have also commenced with rewiring the flat (certified electrical engineer said is not up to regulation and resistance readings not good), renovating the bathrooms (new everything) and painting etc.

                We have applied for a licence to alter for the stud wall extension and the chimney breast. When the Company surveyor visited (GBP940 cost) he was generally fine with everything but saw a saniflo/macerator which we did not know was there in the first place when we bought the flat.

                When he prepared the report for the Board (we never received a copy) he seems to have mentioned the macerator and first we received an email from him that those are strictly forbidden. As removing it would incur significant cost I asked where this was stated and received no response. I then was told by the property management company that the Board had asked we stop all works. I challenged this and said we would not unless proper reasons/grounds were given. We did not hear back.

                We have now received a draft licence to alter by the company retained solicitor (GBP1450, is this reasonable?) that effectively sets out the following conditions and provisions
                - Scope of licence includes: refitting of the existing kitchen, bathrooms, replacement of floor finishes and full rewiring of the electrical installation
                - Remove the macerator
                - if there is a noise complaint of the works (9-6pm with no work from 2-4pm) we are required to cover the floors with carpets
                - landlord and agents can enter premises at all times in connection with the works subject to the licence
                - We have to comply with anything that the company surveyor may deem necessary or "desirable"
                - Other conditions relate to fire retardance etc which is fine

                We also submitted plans to building control of the council and they have come back with using fire retardant plaster board and specific lintels for the chimney breast which we are using anyway, once we start on these works.

                We have had to remove the wooden flooring and put the same one back one with better sound insulation. The lease in that regard says carpet, felt or other sound absorbing material which I think we adhere to (chipboard with thick acoustic underlay)

                I would like to understand the below in particular:

                - Is the cost reasonable, especially legal
                - Does the "arrangements of the premises" include extending a non-structural wall
                - I am quite sure but want to confirm that they cannot just extend the scope of this licence to include the floors, rewiring etc.
                - This saniflo unit they cannot legally force us to remove it. It has been there for 15 years probably.

                Thank you very much




                Comment

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