Freeholder unreasonably withholding consent for extension?

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    Freeholder unreasonably withholding consent for extension?

    Hello - firstly, sorry if this question has been asked previously (I imagine it has), but I have looked over the forum and couldn't find an answer which quite matched.

    I am seeking to build an extension to my ground-floor flat - there are two flats above. I am also seeking to alter the internal layout. I have planning permission. I haven't carried out other works to this property since I purchased it over three years ago. When I purchased the property I obtained agreement in principle from the existing freeholders to build an extension (although realise that this will not have included any plans, etc.).

    I have a share of freehold, and the other freeholders have requested that I obtain a licence to alter (paying for both my solicitor and theirs) and surveyors (again mine and theirs) before they give consent to the works going ahead.

    We agreed to pay (reasonable) costs for surveyors and solicitors in May 2018; it's now October and the other freeholders have still not instructed their solicitor (despite roughly monthly emails from them confirming that they are progressing it) and have said that they won't allow surveyors access to their properties until the licence to alter is completed.

    At present it feels like the other freeholders could perpetually block us from carrying out the works, for instance if they never instruct a solicitor or never allow the surveyors access to their properties.

    Does this now constitute the consent being unreasonably withheld? Is there anything we can do to get the works started? I would prefer to avoid going to court unless that is our only option, and would be reluctant to just start the work without a surveyor having inspected the flats above ours (in case there is any existing damage).

    #2
    I'm confused. Is this an internal re-organisation, or an extension. An implied right no to be unreasonably refused only applies to the former, as long as it constitutes an improvement.

    An actual extension means transferring communal land to your demise. There is no automatic right to this and the freeholder can charge a premium for it.

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      #3
      Thanks for having a look and responding. Sorry - I could have made that clearer.

      It is both an internal re-organisation and an extension. I own the land onto which I am seeking to extend, it is not communal (it's a side-return extension), so there will be no transference of land / property.

      Very grateful for any more thoughts.

      Comment


        #4
        You almost certainly don't "own" it. You likely have a lease on it. "not communal" and "owning" are not quite the same thing.

        How much money are you intending to pay your fellow freehold owners for the uplift in value. 50% would be reasonable.

        Comment


          #5
          I believe Lawcruncher has said that a a premium is only chargeable if the extent of the demise changes.

          Comment


            #6
            Originally posted by AndrewDod View Post
            You almost certainly don't "own" it. You likely have a lease on it. "not communal" and "owning" are not quite the same thing.

            How much money are you intending to pay your fellow freehold owners for the uplift in value. 50% would be reasonable.
            "Ownership" is a tricky concept especially in relation to land. Whilst, especially in connection with short term tenancies, we may think of the landlord as the "owner" of the property, in fact, however long or short the tenancy, we should be thinking not who "owns" the physical thing, that is the land and any buildings on it, but what rights landlord and tenant have. The essence of a tenancy is that what the landlord owns is the right to possession when the tenancy ends (the reversion) and the right to be paid any rent reserved and what the tenant owns is the right to possession. Whilst for most purposes it is of little practical relevance, the land and anything on it are owned by the Crown. The most anyone can own is an estate in land.

            If a lease includes both building and land and has a restriction against alterations without consent then obviously the restriction applies both to the building and the land, but so do the provisions of section 19(2) of the Landlord and Tenant Act 1927. Accordingly, the landlord is not entitled to be paid any premium for the uplift in value resulting from an extension.

            Comment


              #7
              Originally posted by leaseholder64 View Post
              I believe Lawcruncher has said that a a premium is only chargeable if the extent of the demise changes.
              And if there is an absolute prohibition against making alterations.

              A lease can (and some indeed do) have both absolute and qualified prohibitions against making alterations e.g. an absolute prohibiton against making structural and external alterations and a qualified prohibition against making non-structural internal alterations.

              Comment


                #8
                Thank you for clearing that up Lawcruncher.

                So I believe that I have the right to extend onto this land, and I have permission from the council to do so.

                To ask the question as simply as possible (in the hope that I will understand the answer):

                If I want to build an extension but the other freeholders are ignoring my messages / slow-balling indefinitely, does that mean that I will simply not be able to build the extension?

                Comment


                  #9
                  It is not so much that you have the right to extend onto the land, but that the landlord cannot refuse permission if it is unreasonable to do so.

                  The short answer to your question is "no". The legislation says that where consent is required it is not to be unreasonably withheld. Whilst the legislation does not include the words "or delayed" it has to be implicit that there comes a point where failing to communicate a decision amounts to a refusal. If it were not, it would make a nonsense of the legislation. If the lease covenant includes the words "or delayed" then the position is of course covered beyond doubt.

                  If consent is being unreasonably withheld a tenant has three options:

                  · To forget the whole thing.

                  · To apply to the court/tribunal (not sure which) for a declaration that consent is being unreasonably withheld. The usual warnings about getting involved in litigation apply.

                  · To proceed with the alterations. That is obviously risky. You need to be absolutely sure that: (a) your application is in order, i.e. that you supplied everything needed for the landlord to make a decision; (b) you have allowed sufficient time for a decision to be made; (c) that consent could not have been unreasonably withheld. You should also give reasonable notice of your intention to do the works. Apart from risking being sued by the landlord, there is the not unimportant point that when you come to sell you will have no written consent to produce to the buyer.

                  In summary, the law is on your side, but there is no easy way to get a quick result if consent is being withheld. Where landlords are tenants (as here) a bit of "black dog for a white monkey" negotiating with your fellow freeholders may yield a result. If that gets you nowhere, the way to proceed is to demonstrate serious intent by threatening to sue or involving a solicitor.

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