Blocked from doing a loft conversion by the co-freeholder

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    Blocked from doing a loft conversion by the co-freeholder

    I’m a first time poster on the site and couldn’t see anything that relates specifically to this topic, although various forums around the subject.

    I would like to do a loft conversion on our flat and the co-freehold owner has refused consent so we want to see if there is anything we can do to force the issue. The circumstances are as follow.
    1. The flat is in a terraced house that has been converted into 2 flats many years ago and now the 2 flats have co-ownership of the freehold and both have leaseholds.
    2. Regarding the leasehold it doesn’t appear the loft space is demised to us, see below, although the wording isn’t the easiest.
    ‘ALL THAT flat or maisonette being (property address) and being on the First floor of the Building including the foundations and the structure of the flat and the floors of the flat and the ceilings thereof and the joists under the floors of the flat and the external walls of the flat from the commencement of the First floor down to the ground floor of the Building and including the separate entrances’
    1. The leasehold also says we need to get the freeholders consent to changes.
    2. We approached the co-owner of freehold from the flat downstairs some time ago and they said they wouldn’t give their consent.
    3. We offered a lump sum as well as other potential incentives/concessions to try and get consent but to no avail.
    4. We then tried again recently but got a straight, not interested.
    5. We feel they are being unreasonable.
    6. The vast majority of houses/upstairs flats in the street have loft conversions so there is plenty of precedent.
    7. We don’t think this can be resolved as things stand.
    This being the case we want to see if there is anything that can be done to force this through. We are happy to pay a premium for consent and potentially other suggestions but we are getting no response and we don't think any objections are valid reasons for withholding consent, although we are aware maybe they can just say no without needing to give reasons and that is the end of it.

    Something we have thought about as a slightly different approach is that our property does have a flat roof section to it, so there is no loft above it. Having read that the air space above a property is deemed to belong to the owner of the property below it, we are wondering if we could build on this portion of the house and the downstairs co-freehold owner could only refuse if they gave valid reasons, as opposed to just being able to say no to the loft conversion. It would be a bit strange maybe not being able to convert the loft space but having a room next to it but it might be our only option.

    Any advice/suggestion would be a great help.

    Thanks

    #2
    If you don't have a demise over the attic space, there is nothing you can do, other than a large enough "bribe".

    If it does, we need to know the wording of the lease on consent to alter.

    (You should expect to have to provide a structural engineers report and to pay the freeholder for an independent surveyor to verify that and ensure you are complying. You will need full planning consent for any windows, but if such conversions are common, that will probably be easy.)

    Comment


      #3
      Before you ask where you go from here you need to have a good idea of where you stand. You have two questions to answer.

      The first is whether you own the loft space. On the basis of the information supplied so far, it looks like it, but further details may throw doubt on the position. See here and come back with any questions.

      The second is how what you propose is covered by the lease. We can hopefully answer that if you set out in full the provisions in the lease relating to alterations.

      Comment


        #4
        Hi thanks for the info very helpful. Maybe we can use the loft then but not alter the roof. The wording from the lease regarding alterations is as follows.
        Not to cut maim or injure any of the walls timbers or floors of the Flat or make any openings therein or erect any partitions for dividing rooms or remove or alter any of the Lessor’s fixtures fittings or appliances or make any structural alterations or structural additions to the demised premises nor to erect any new buildings thereon without the previous consent in writing of the Lessors and in any case in accordance with plans and specifications previously submitted to an approved by the Lessors

        (i) Not without the previous consent in writing of the Lessors erect or permit or suffer to be erected any new building on the demised premises or suffer to be erected any new building on the demised premises or make or permit or suffer to be made any alteration in addition to the demised premises or in the layout or arrangement of the demised premises.
        (ii) If pursuant to sub-clause (i) hereof the Lessee applies for the Lessor's consent to the making of any substantial alteration or addition to the demised premises the Lessors shall be entitled as a condition of giving such consent to require the Lessee to provide security to the satisfaction of the Lessors for the carrying out and completion of the works proposed by the Lessee.

        Any input on these would be much appreciated.

        Comment


          #5
          All the clauses say the alterations are not to be made without consent. When that is the case the law says that the consent cannot be unreasonably withheld. That means the landlord cannot charge a premium. If the landlord resolutely declines to give consent there is no easy way forward. The are two possibilities.

          One is to apply to the court. All litigation is risky and, if you lose, the cost will be disproptionate to what you might have gained. Even if you win, you will probably not recover all the costs. You do not really want to be inolved in a lengthy court case with someone you have to live very near to.

          The other is, after giving reasonable notice of an intention to do so, to proceed with the work. That is risky. It does throw the onus on the landlord to take action and risk expense. If he fails to take it and stands by while the work is carried out he probably loses the right to any remedy. You cannot though rule out the possibility of action being taken and having to reverse all the work. A significant downside is that when you come to sell you will not be able to produce a consent for the works. There will be no obligation on the landlord to do anything, even if he withheld consent unreasonably. Consent cannot be given because you do not need to consent to do something which has been done. There is no obligation on a landlord to sign a formal waiver of breach of covenant.

          I think you need to tell you co-landlord that he cannot unreaonably withhold consent. If he wants chapter and verse refer him to section 19(2) of the Landlord and Tenant Act 1927 which I set out below:

          In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without a licence or consent, such covenant condition or agreement shall be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed.

          Comment


            #6
            Thanks for the clarification. We now need to decide what to do but feel we can push for this so thanks very much for the insight.

            Comment


              #7
              Hi. We are now weighing up other options.

              Firstly, part of the upstairs flat has a flat roof over it so there is no loft space which isn't demised to us. We are now wondering if there isn't a space that isn't demised to us above this area the co-freeholder wouldn't be able to just say no, they would need to give valid/reasonable reasons for objecting. This might have an effect to help with discussing the loft space that isn't demised to us because the section over the flat roof is closer to the neighbours garden so would potentially be worse regarding over looking/blocking sunlight.

              Below is the wording about what area of the flat belongs to us.


              LEASE WORDING
              'ALL THAT flat or maisonette being (flat address) and being on the First floor of the Building including the foundations and the structure of the flat and the floors of the flat and the ceilings thereof and the joists under the floors of the flat and the external walls of the flat from the commencement of the First floor down to the ground floor of the Building and including the separate entrance.'

              Secondly we are wondering about skipping any kind of loft conversion and going for a garden office/play/rest space. It wouldn’t give us exactly what we want but shouldn’t cause issues with the co-freeholder as it is located at the end of a 20m garden space and wouldn’t hardly be visible from downstairs. There are already other similar structures in neighbouring gardens so planning permission should be ok. This would be a cheaper option as well. The relevant wording in the lease does state about new structures, see below, but the garden is definitely demised to us, so the objections would need to be reasonable. However, it does say about the co-freeholder/Landlord giving consent and they could choose not to even without a valid reasons and I'm not sure how this would affect us as and when we come to sell down the line.

              LEASE WORDING
              'Not to cut maim or injure any of the walls timbers or floors of the Flat or make any openings therein or erect any partitions for dividing rooms or remove or alter any of the Lessor’s fixtures fittings or appliances or make any structural alterations or structural additions to the demised premises nor to erect any new buildings thereon without the previous consent in writing of the Lessors and in any case in accordance with plans and specifications previously submitted to an approved by the Lessors

              (i) Not without the previous consent in writing of the Lessors erect or permit or suffer to be erected any new building on the demised premises or suffer to be erected any new building on the demised premises or make or permit or suffer to be made any alteration in addition to the demised premises or in the layout or arrangement of the demised premises.
              (ii) If pursuant to sub-clause (i) hereof the Lessee applies for the Lessor's consent to the making of any substantial alteration or addition to the demised premises the Lessors shall be entitled as a condition of giving such consent to require the Lessee to provide security to the satisfaction of the Lessors for the carrying out and completion of the works proposed by the Lessee.'

              Any advice would be great.

              Comment


                #8
                Did you get this resolved in the end? I am finding out if I can put a room in my attic but there’s nothing on any documents to say that I own the loft. I am freehold so is my neighbour. How did you get on?

                Comment


                  #9
                  Did your co-freeholder give you any grounds for refusing consent? I am also a co-freeholder and have refused consent for a loft conversion which was requested by my other co-freeholders. My main ground for refusing is that I don't trust one of the co-freeholders - is that unreasonable?

                  Comment


                    #10
                    LondonResident has not logged on exactly a year ago tomorrow, so don't expect a reply.

                    Any new questions on lofts should start a new thread, as not all leases and circumstances are the same.

                    Comment

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