Landlord consent for alterations reasonably withheld?

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    Landlord consent for alterations reasonably withheld?

    Hi all,

    I own a share of freehold of a block of residential flats. One of my co-owners is a leaseholder of the uppermost flat of the building and has recently obtained planning permission from the council for the enclosure of the parapet walkway by extending the mansard roof and insertion of a new window.

    His lease reads "...consent is required from the Lessor to make any structural alterations or additions (not to be unreasonably withheld or delayed)."

    All of the leaseholders / joint owners of freehold, except the guy looking to make undertake the extension works, wish to withhold consent.


    Our concerns regarding the extension works are:

    1. The original planning permission when the building had a change of use to residential property could have had the necessary works undertaken at the time of the conversion. As the design of the top flat was off-plan, it could have been designed to incorporate the extra space requested. We feel it was his choice to restrict the internal area of the flat at the design stage when the building was empty.

    2. There is a concern that the extra weight of the extension will cause the building to shift as it did after the initial conversion.

    3. The building is located within a conservation area and included "for its positive contribution to the area's townscape". The top floor flat is currently barely visible from street level, yet the extension works would change this.

    4. The quality of the building work undertaken by this guy is suspect - we have had several escapes of water emanating from his flat, affecting over half of the building. Concerns are over whether this new building work will be of a similar standard, especially as it affects the roof.

    5. The proposed window is at eye level of the private terrace of the flat immediately below, denying the privacy currently enjoyed.

    6. The guy lets his property to tenants, whereas the majority of the leaseholders / co-owners have their primary residence in the building. We 'resident owners' will be the ones affected by the scaffolding and months of works.

    7. The planning application submitted to the council stated "...improves the internal layout and proportions in the spirit of ‘stay and extend’ the flat to make it a more practical living-space, rather than to have to vacate it in order to find that space elsewhere."
    This is factually incorrect, the owner of the top flat has never had his primary residence in the building. The rest of us believe that this is a ploy to obtain permission later to change from a two- to a three-bed property to increase his rental income only.

    8. Lastly, roof access is provided which does not conform to building regulations and is a serious safety hazard. If this is ignored, we query what else would be?


    Would these concerns be considered unreasonable if consent was withheld? Also, what objections could we reasonably hold, if any?

    Any comments and/or suggestions would be most welcome!


    Many thanks.

    #2
    Is the parapet walkway in his demise?

    Comment


      #3
      planning permission does not and cannot over ride a freeholders refusal to allow.

      You are within your rights to refuse, and reading your post, you must refuse.

      You don't have to give a reason for your refusal.
      If pushed, you say
      1 ) The freeholder does not wish the building to be altered.
      2, you state Number 2 in your post
      3, you state Number 4 in your post
      4, you state Number 8 in your post, and demand it is rectified

      You also need to inspect the flat ( as is the freeholders rights ) to inspect for bad workmanship, cause of leaks, etc

      From what you say, just refuse, then when confronted, list the reasons, which are reasonable to refuse, in my opinion.

      Comment


        #4
        What Ram said.

        Also, you might point out that you will not deal with any sale if the property is extended, until such time as it is restored to the original plan.
        To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

        Comment


          #5
          Just to remind you.

          The lease is a legal document, a legal contract, and enforceable through the courts.

          Look for a covenant that says the freeholder can forfeit the flat using S146, and that the leaseholder will be responsible for all your costs Incurred, and or in preparation of S146.
          Forfeiture is not often given, but you use the S146 route to get all your costs back.

          If above is in the lease, you can legally threaten forfieture if the flat / demised portion is not up to building regs, is dangerious, illegal etc etc if they don't rectify it.

          You have not acted before over number 8, so you MUST act now and demand rectification.

          The freeholder has a "Health and Safety" LEGAL OBLIGATION to rectify number 8.
          Also as a freeholder has obligation to rectify.
          Failure to have rectified and someone gets hurt, it's the Directors that go to prison, and or the Directors could be fined, lets say - £ 40,000 damages, so if only 4 directors, that's £ 10,000 each, and
          a CRIMINAL RECORD too. ~ ( you could lose your job if convicted ! )

          It cannot come out of the service charges, nor be paid out of Directors insurance, if found to be a deliberate act of not rectifying the problem ( which it seems it is )


          Comment


            #6
            Originally posted by AndrewDod View Post
            Is the parapet walkway in his demise?
            Unfortunately, the walkway is within his demise.


            Appreciate the comments. A further few questions, if I may:

            a) Can the freeholder appoint our own structural engineer to evaluate the building and charge the costs to the leaseholder concerned?

            b) Within the leases is provision for the landlord to refer disputes to the landlord's surveyor, whose decision is final and binding. While I'm minded to encourage taking this course of action, is the RICS Arbitration Service a recommended method of dispute resolution rather than the courts? Any experience of this that can be shared?


            Thanks again.

            Comment


              #7
              I'd be wary of leaving decisions like this up to a surveyor. I think they might see more fees for themselves in supervising the extension than in turning it down.
              To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

              Comment


                #8
                1 ) Are the current fauilts ~ roof access does not conform to building regulations, contrubutable to the current owner ?

                2) Was permission requested ( if the lease says so ) to carry out the previous works, roof access, work resulting in floods etc.
                ( our lease states not to alter water or heating without permission )

                .......................

                Comment


                  #9
                  Initial thoughts:

                  1. Not sure that is relevant.

                  2. You have to show that this is a real possiblity.

                  3. Not sure this is relevant either.

                  4. The fact that work has not been carried out well before does not really justify withholding consent, though it may justify insisting that the work is monitored by a surveyor or architect.

                  5. May be a valid consideration.

                  6. The first part not relevant. The second part could be relevant.

                  7. What he said in his planning application is not relevant.

                  8. Not sure I understand this point.

                  I think what you need here is an assessment by a surveyor, as legal points are not really engaged. Whilst the grant of planning permission does not automatically mean that refusal is unreasonable, it is a strong point in the lessee's favour.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    Whilst the grant of planning permission does not automatically mean that refusal is unreasonable, it is a strong point in the lessee's favour.
                    I'd disagree with this last "strong point" bit. Planning applications have no import whatever (except if rejected). I can put in a planning application to build a house extending into my neighbour's garden, and so long as it fits the planning rules it will likely be approved. Doesn't help me make a case that I can do it though.

                    Maybe a very very weak point in the lessee's favour.

                    Comment


                      #11
                      I am with Lawcruncher. If the leaseholder's plans get planning permission and he can prove there will be no structural damage to the property nor devalue it then I doubt the freeholder can reasonably withhold consent.
                      He can of course withhold consent but if challenged then thats another matter

                      Comment


                        #12
                        Originally posted by AndrewDod View Post
                        I'd disagree with this last "strong point" bit. Planning applications have no import whatever (except if rejected). I can put in a planning application to build a house extending into my neighbour's garden, and so long as it fits the planning rules it will likely be approved. Doesn't help me make a case that I can do it though.

                        Maybe a very very weak point in the lessee's favour.
                        Let's put it this way then: When considering an application for planning permission the planning authority takes various matters into consideration. If permission is granted it has to be supposed that the planning authority acted professionally and found no reason to refuse the application. This makes it difficult, but by no means impossible, to refuse consent on a ground that would be a ground for refusing planning permission.

                        Take for example point 3. The planning authority must be taken to have considered the suitability of the proposal having regard to the fact that the property is in a conservation area. The fact they decided it was suitable has to be taken into account and must be persuasive, though not binding, because at least one professional has considered the question.

                        This does not change the points I often make that planning matters and conveyancing matters operate separately and that the grant of planning permission does not override the rights of third parties. It is just the case that sometimes the same criteria may apply when making a decision.

                        Comment

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