Freeholder running business in common areas?

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    Freeholder running business in common areas?

    Hi guys

    I live in a small block of flats. We have some common land in front of the block which used to be gardens when the flats were originally built, but which were converted into a car park about 15 years ago. This was done at residents expense as it was intended for residents sole use; however the leases were not updated to reflect this.

    About ten years ago we got a new freeholder who has said that he owns this land, residents only have right-of-way through it, and therefore he has decided to run this space as a public pay-to-stay car park. Profits from this car park go direct to the freeholder, but residents still pay for upkeep of the land through the service charge. No planning permission has been sought, and this decision - which necessitates our security gate remaining open at all times - creates grave management problems for residents including rough sleeping, heroin use, regular deposits of human waste in our common areas, etc.

    I've asked for evidence from the freeholders' lawyers that they're allowed to do this and they've suggested I get legal advice. So I thought I'd ask you guys. Does this sound right to you?


    15 years ago is too old to take action on the original, likely, planning breach. However, I'd suggest getting a copy of the planning consent for the original development, to see if there are additional breaches..

    I think private to public car park may be a planning breach, so talk to the council's planning department, assuming the lease doesn't forbid such approaches.

    Given you acquiesced in any initial breach of the lease, there may be difficulties enforcing the lease, but, in any case, leases tend to be biassed towards letting the freeholder exploit the non-demised parts. In any case we would need to see the lease.

    Make sure the police (probably the safer neighbourhoods team) are aware of the criminal and ASB use of the land.

    I suspect you have allowed a sufficiently complex situation to develop that you might well need professional advice.


      Thanks leaseholder64, I'm inclined to agree with you - I only moved in 9 months ago but Leaseholder turnover is extremely fast here, which I think has allowed the situation to get out of hand.

      I'll talk to the council about the recent planning breach (residential to commercial), as this I think is the heart of the problem - and fortunately they only began running it as a public car park a few years ago, so we may have time to object to that. I think we're fine with it being a car park - we just don't appreciate the public having right of way through our common areas and the issues that creates.

      Appreciate the reply. Always good to get another view on these things.


        I think I might be drafting an application to the FTT.


          Thanks JK0, that was my first thought too. My concern is that the Freeholder ignores Tribunal decisions when it suits him - a 2011 LVT (as was) found that it was not reasonable to charge residents for parking, yet the Freeholder continues to do so, even going so far as to issue CCJs this year. He's quite litigious so my worry is that we'd get run over the coals by his lawyers, as has happened in the past.

          Do you think FTT would take a Freeholder ignoring their decisions seriously? Residents are not so sure on this side


            If they don't treat it seriously, or direct you to some other court capable of applying contempt of court penalties, I think you should talk to your MP.


              But how would he get CCJ's unless lessees are completely apathetic?

              Someone receiving a parking fine should just show the judge the LVT's findings.


                LVT's findings, ( now the F.T.T ) is what it says. Findings.

                LVT / FTT is not a court.
                You take your LVT paper determination to a court and insist on a court order for freeholder to do what the LVT said should be done.


                  These are great replies, thanks all. Sorry if I'm being a bit ignorant here but what kind of court should I be looking at to enforce an FTT finding?

                  JK0 Lessees ARE more or less completely apathetic - I think they've expected the FTT finding to protect them so they've ignored demands but these CCJs have panicked people and they're now scrambling to respond.


                    Courts.( ordinary courts, and not High courts )
                    Do what I have to do.
                    You look on the websites of various courts near you which tell you what they cover.

                    I have to telephone them and ask if they cover residential leasehold matters.
                    Some do, some don't. but i have been lucky and find they direct you to a suitable court.

                    Word of warning.
                    You Must, ( + read the information ) tie all your application documents together, as you are expected to submit 2 copies of everything, and I found on one forfeiture application ( which was successful in what i wanted to achieve ) , they just seem to have a table, empty all contents of envelopes on it and people just pick up a bundle.
                    Mine were not tied together, and I got one copy returned as someone else picked up the 2nd copy and returned it as it did not have the original application on the official application form ! ! ! ( as was with another person )

                    You can do it without a solicitor, but it must be the freeholder, ( a Director of the freehold RTM / RMC company that applies,) and WITH the aurthorisation of the company.

                    I used to not ask for authorisation, ( because directors have to pay for the application / solicitor, but refuse to pay ) but rather told them that this is what must be done, and if they don't proceed, I will take them to court for not observing the lease.


                      Thanks ram , this is great. We don't yet have an RTM company but we should do in the next six months, which should I think give us a slightly stronger position. Appreciate your input, I'll save this to the old memory banks. Much appreciated.


                        You say your lease states "residents only have right-of-way through it" and refers to the garden that is now a car park.

                        If it is a garden, ( or used to be ) then your leases should allow you to sunbath on the original garden if you wish.
                        Does the lease ONLY say you have a right to pass and re-pass only, or does it also say can be used for quiet enjoyment.?
                        OR does it say nothing about the garden/s ?

                        It would be strange if the front garden did not have any mention of being able to USE the gardens for quiet enjoyment.

                        A typical covenant would read: -

                        Full right and liberty for the lessee and all persons authorised by him ( in common with all other persons entitled to the like right ) to use the forecourt and gardens ( then may refer to a plan, and area coloured in )for the purpose of quiet enjoyment only but not for the purpose of playing games or for any other purpose likely to cause offence or consitue a nuisance to other lessees.

                        The covenant would apply to none residents using the front area, and would cause offence or consitue a nuisance to other lessees.

                        1) If you don't have the "get out" covenant above, you can always state to the freeholder that you are going to reinstate the garden as the lease plans show, and / or that the freeholder is in breach of the lease by not giving you back the garden, as it's stated you have use of, and if he does not rip up the carpark and convert it back to a garden, then the leaseholders will do so, otherwise the feeholder can sue you all for deleting the garden and putting a carpark there ( unles the original freeholder agreed to a car park.) But you can also insist the garden is replaced by the freeholder.
                        Above is only an argument to get the freeholder thinking, but either way, you lose the car park, but can then close your gates.

                        But give us the exact wording of the lease about the gardens.

                        2) If you are allowed ( which you are ) to use the garden ( now the carpark ) you can hold meetings on that land, every day, thereby stopping some cars parking, as they will have to run you over to park.
                        3) You can have a fire evacuation test every day, and stand, as is your right, at the entrance to the premises, as that being your meeting point.
                        4) your car can break down in the entrance, and be stuck in gear. ( Sorry Luv, cant move it - stuck in gear )
                        5) if the none resident cars have permits on the windshield, put stickers over them. ( i love my caravan / Sunny Sussex )
                        No sir, was not me, must be all the drug dealers trhat keep looking into your cars.
                        6) put notice on cars saying- rough sleeping + heroin use may see your car broken into.
                        7) buy a driveable £ 50 car, legally scrap it on paper, false address, put it nearest to the entrance, and slowly vandalise it, but putting a sign on it ( Large paper in plastic bag LARGE letters ) saying, if you park here, this is what your car may look like tonight, so best not park here.
                        Take off number plates of course, after a month, tell the freeholder to remove it from HIS car park.
                        ~If not, then get another.

                        Many things you can do to anoy the freeholder in the meantime ( under cover of darkness of course.)

                        CCj's, then as advised, wave the lvt document, but beter still, go to court to uphold the lvt decision.

                        Happy new Year.


                          Correction to post number 10, Parra' 4
                          ( You can do it without a solicitor ) and read my mischievous post 12 above.

                          In the L.V.T. case, the person or persons who got the ruling, just go to court to enforce the ruling -- simple. ( just get all leaseholders to pay a share of the costs )


                            The clause quoted in red above would be an easement, not a covenant, and would not apply to non-leaseholders. Where it probably would be relevant, is the landlord probably can't do anything that would deny the leaseholders their rights. (The games restrictions are not restrictive covenants, but simply limits to the rights granted, by the lease, although they could be granted by other means.) I think it would say "recreation", not "quiet enjoyment", as the latter has specific meanings.

                            Nowhere does that clause say that the leaseholders have exclusive access to the gardens.

                            However, my big concern here is that that the leaseholders sold their souls to the big god motor car sufficiently long ago that the landlord could argue that the use of the car park was established as valid. Anyone with a CCJ would find the position particularly difficult because estoppel could probably be claimed. Once you establish that the use as a car park is allowed, it is not a big leap to allowing it for outsiders.

                            Even if there were a successful action to re-instate the right to use the area as a garden, I think the result would be that the right to park there would be lost.

                            I think the car worshippers may well have sowed the wind and reaped the whirlwind. Establishing the principle that it can be used as a car park has opened the gates (literally in this case) to its use as public car park).

                            As I noted above, they probably caused a breach of planning consent by the initial conversion to a car park, as blocks of flats don't get permitted development rights, and the original planning consent conditions, for the flats, are likely to require the gardens to be retained, and they also caused the landlord to breach the easement, in their desire to satiate the motor car god. The planning breach is too old to enforce and it is not certain how the breach of the easement will be handled, given that it has been accepted for 15 years.


                              Thanks both. The lease grants residents:

                              Full right and liberty ... to go pass and repass over and along the pathways included in the title above mentioned leading to and the main entrance of the said Building and the passages landing and staircase leading to the Flat.
                              as well as:

                              The right in common with the Lessor and the other lessees in the Building to use any communal gardens included in the title above mentioned and the pathways leading thereto whilst the same shall remain as such.
                              But it also grants the Freeholder the:

                              power at all times ... to deal with as the Lessor may think fit with any land or buildings adjoining opposite or near to the Building ... and to make alterations and additions
                              Which I think would cover the development of the car park. But it feels very dishonest to change its use as the original conversion to car park was done ONLY with the express understanding that it would be exclusively for residents use but it may be covered by the above.

                              I don't think anyone wants to cause too much of a pain to anyone by forcing redevelopment - we just want there not to be heroin addicts wandering around our building trying to steal from us.

                              We've been advised that the public right of way may represent a breach of lease in that it interferes with our right to quiet enjoyment. To that end I've been maintaining a table of nuisances created by this decision - which is pretty full at this point. Do you guys think that might be a decent way of pushing forward?


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