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Restrictive covenant preventing extension to flat
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sidebarcarl
Posts: 19 Forumite
Hi
I have been advised to post this here in the hope a solicitor or someone with previous experience reads it.
I have a leasehold flat in London and I wish to extend on the back so that I can have a large kitchen family room and change the current lounge to a second bedroom.
The freeholder is wandsworth council. I have been given planning permission and recently submitted those plans to the freeholder for permission from them. It turns out that there is a restrictive covenant stating that my garden must be used as a garden. They replied yesterday with the following:
Application: - Construction of Single Storey rear extension
I am in receipt of your plans/drawing to the Planning Department for approval of a single storey rear extension.
I must advise that the terms of your lease states that you cannot carry out structural alterations without the council’s permission as landlord. The Housing Department in these circumstances is deemed to be the landlord. If permission is to be granted, your lease needs to be amended by way of a deed of variation/licence for alterations and no works may commence until the deed has been drawn up and signed. This is effectively a conveyance procedure, requiring the appointment of solicitors by both parties to deal with the necessary processes involved and consequently legal costs will have to be incurred and you will be expected to pay both sides costs. The council’s own legal costs are in the region of £350 and you would have to provide an assurance that you are prepared to meet these costs before the granting of permission can be considered.
At this point I must point out that the garden land you propose to build on does have a restrictive covenant on it which prevents you from building on it. (Please see Clause 3 (c) and Third Schedule 11) therefore in order for this restrictive covenant to be released, the land which the extension occupies will need to be valued by the Councils Borough Valuer and the fees for this is £781.60.. You would then be notified of the valuation figure and this sum would have to be paid in order for the covenant to be lifted. I should also point out that your lease percentage would also change due to the increased living area. I am unable to advise on the level of the increase at this time. The final thing you should also be aware of is that any additional maintenance cost to the property as a direct result of your extension will be chargeable to you as the leaseholder.
Now, I was fully aware that I would have to pay legal costs to have the lease altered and that the extension would result in an increase in service charge and maintenance costs. However, the part where I have to pay for a valuer to visit and then buy the land has come as a complete surprise.
The flat comes with a garden at the rear and this is included in the lease. I therefore thought it would just be a case of building the extension and then it would follow the rest of the flat in terms of lease length and restrictions.
Surely if the garden is included in the lease, all I have to do is have the covenant removed?
Does anyone have any expertise or experience of this kind of dilema?
Any help is much appreciated.
Regards
Carl
I have been advised to post this here in the hope a solicitor or someone with previous experience reads it.
I have a leasehold flat in London and I wish to extend on the back so that I can have a large kitchen family room and change the current lounge to a second bedroom.
The freeholder is wandsworth council. I have been given planning permission and recently submitted those plans to the freeholder for permission from them. It turns out that there is a restrictive covenant stating that my garden must be used as a garden. They replied yesterday with the following:
Application: - Construction of Single Storey rear extension
I am in receipt of your plans/drawing to the Planning Department for approval of a single storey rear extension.
I must advise that the terms of your lease states that you cannot carry out structural alterations without the council’s permission as landlord. The Housing Department in these circumstances is deemed to be the landlord. If permission is to be granted, your lease needs to be amended by way of a deed of variation/licence for alterations and no works may commence until the deed has been drawn up and signed. This is effectively a conveyance procedure, requiring the appointment of solicitors by both parties to deal with the necessary processes involved and consequently legal costs will have to be incurred and you will be expected to pay both sides costs. The council’s own legal costs are in the region of £350 and you would have to provide an assurance that you are prepared to meet these costs before the granting of permission can be considered.
At this point I must point out that the garden land you propose to build on does have a restrictive covenant on it which prevents you from building on it. (Please see Clause 3 (c) and Third Schedule 11) therefore in order for this restrictive covenant to be released, the land which the extension occupies will need to be valued by the Councils Borough Valuer and the fees for this is £781.60.. You would then be notified of the valuation figure and this sum would have to be paid in order for the covenant to be lifted. I should also point out that your lease percentage would also change due to the increased living area. I am unable to advise on the level of the increase at this time. The final thing you should also be aware of is that any additional maintenance cost to the property as a direct result of your extension will be chargeable to you as the leaseholder.
Now, I was fully aware that I would have to pay legal costs to have the lease altered and that the extension would result in an increase in service charge and maintenance costs. However, the part where I have to pay for a valuer to visit and then buy the land has come as a complete surprise.
The flat comes with a garden at the rear and this is included in the lease. I therefore thought it would just be a case of building the extension and then it would follow the rest of the flat in terms of lease length and restrictions.
Surely if the garden is included in the lease, all I have to do is have the covenant removed?
Does anyone have any expertise or experience of this kind of dilema?
Any help is much appreciated.
Regards
Carl
0
Comments
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Pay up and make sure the planning people are on your side.
Costs me over £3000 to go to appeal even after altering my plans three times to keep the planning people happy.
They still refused but we won on appeal.
£350+£781.60 cheap money !!!!0 -
Pay up and make sure the planning people are on your side.
Costs me over £3000 to go to appeal even after altering my plans three times to keep the planning people happy.
They still refused but we won on appeal.
£350+£781.60 cheap money !!!!
OP already has planning permission.
It is the freeholder of the lease which is the problem - it happens to be the council but this is unrelated to planning permission.0 -
Freeholder doesn't have to consent to extension under lease. Therefore if you want him to consent he can ask you to pay the increase in value of the land as a result of the extension. Nothing unusual in that.
As ever in these cases the advice is "read the lease". Don't assume anything.RICHARD WEBSTER
As a retired conveyancing solicitor I believe the information given in the post to be useful assuming any properties concerned are in England/Wales but I accept no liability for it.0 -
If you don't pay, the freeholder will refuse consent.
Simple.
If you do pay, the freeholder will consider your application, and may consent,.... or not.0 -
" Planning department for approval"
" If permission is granted "
Maybe I am missing something ?0 -
Pay up and make sure the planning people are on your side.
Costs me over £3000 to go to appeal even after altering my plans three times to keep the planning people happy.
They still refused but we won on appeal.
£350+£781.60 cheap money !!!!
I don't mind paying those 2 figures, it's the cost of buying the land at the valued price that scares me. Also, if I go down the route of buying the freehold with other tenants, I'd still have to get the council's permission as they are the ones that have the covenant in place.0 -
Richard_Webster wrote: »Freeholder doesn't have to consent to extension under lease. Therefore if you want him to consent he can ask you to epay the increase in value of the land as a result of the extension. Nothing unusual in that.
As ever in these cases the advice is "read the lease". Don't assume anything.[/
I thought a restrictive covenant was supposed to offer a benefit to the holder of it. I cannot see how this restriction has a benefit to anyone.
So, are you saying that the council could ask for 100k to remove the covenant? Seems a little ridiculous that something like that could be imposed.
This seems a little one sided in there favour. I pay to build the extension, they charge me all the increase in value and then if the lease expires in 98 years they get the whole improved flat. That stinks.:mad:0 -
sidebarcarl wrote: »
I thought a restrictive covenant was supposed to offer a benefit to the holder of it. I cannot see how this restriction has a benefit to anyone.
It's benefiting the council (as holder) as they will charge you to release it.0 -
" Planning department for approval"
" If permission is granted "
Maybe I am missing something ?
Yes, you are. OP needs two sets of permissions and you're merging / muddling them together.sidebarcarl wrote: »Hi
The freeholder is wandsworth council. I have been given planning permission and recently submitted those plans to the freeholder for permission from them. It turns out that there is a restrictive covenant stating that my garden must be used as a garden.
The council planning department has already given planning permission for the proposed works.
The OP has now submitted the details of the proposed works to the freeholder as, under the lease, the freeholder's permission must be obtained. As it happens, the housing department of the council is the freeholder.
OP has cleared the first hurdle and is now having difficulties with the second one.0 -
Sorry Yorkie 1 you are right but how do the council put a value on the increase in the property value .
Are they talking about the value of the Land/garden it would be taking up.
Do any of the other flats in the building have access to the garden ? Not a shared garden is it.
Anyone can apply for planning permission even if you do not own the property or LAND0
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