Extension into garden not allowed in the lease

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    Extension into garden not allowed in the lease


    I would be very grateful for some advice on my position so that I know my options.

    I own a ground floor (garden) flat with a share of freehold. I am looking to extend into my garden to create more living space.

    Planning permission for the extension has been granted.

    The lease however implies I cannot do this - a deed of variations from 1995 amends the lease to state:
    "not to permit or make structural alterations or other alterations in or to the flat or to the layout of the flat without the prior approval, not to be unreasonably refused, in writing from the Lessor to the plans and specifications including structural engineerings drawings if application thereof and to make all such alterations strictly in accordance with such plans and specifications nor to make any alterations or additions to the garden or erect and new buildings on it."

    I made an initial offer of cash to the freeholders for their permission to extend, however this was rejected (they did not state why, but we think it is likely that the sum offered was not high enough, as our small extension does not significantly impact any of them (in terms of light, views from their property etc).

    Do I have any other options other than offering more cash or giving up on my plans to extend?

    Your advice would be greatly appreciated. Many thanks.

    You need the agreement of your fellow freeholders to process. Until you know what their objections are, you are shooting in the dark.

    Speak to them, it may be you're just a few quid away from something acceptable. Or it could be a complete non starter for them, in which case you can spend your time better elsewhere.


      You own the garden (or at least you are renting it on a long lease). You do not own building rights for the air above it.

      Yes you may get permission. But it involves amending all leases including your own, a service charge uplift to you, and most probably compensation paid to the freeholder (and in effect other lessees if this is a "share of freehold" situation) relating to the uplift in value.

      The planning permission is irrelevant.

      You say the sum you offered was too low. The sum would typically be half the uplift in value of your property (so perhaps tens of thousands of pounds) and as I said a change in your service charge proportion. How much did you offer?


        Assuming the garden is included in your lease and no other tenant has any rights over the area you intend to build on and assuming that there is nothing in the lease which limits the height of the column of air above the garden, then:

        (a) You do not need to pay anything at all. The clause says consent is required but must not be unreasonably wittheld. That rules out a premium.

        (b) Whilst the grant of the planning permission does not mean that consent must inevitably follow, it is certainly a factor in your favour.

        (b) You can build on the garden, though in practice an extension is going to be restricted to one storey.


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