Deed of variation to lease and problems with freeholder's agent

aligee_2

Hi everyone,

We are selling our leasehold 1 bed flat and purchasing a house. Our chain is now complete and has been for a few weeks now. About a month ago our buyer noticed that our lease mentions the flat must have "carpets or other suitable covering". Since the buyer has severe dust allergies, he's asked whether he can extend the existing laminate floors to the entire flat. The flat currently has laminate in all hallways and kitchen and carpet in the bedroom and lounge - same as when we bought it.

Putting aside his lateness in raising this issue, our buyer has not backed out of his purchase - he's merely asked for written permission for the floors from the freeholder and for any costs involved. The problem we've since had has been with our freeholder's managing agent, Hamilton King management.

After over a week of attempting to make contact, one of Hamilton King's employees verbally confirmed with our solicitor that extending the carpets should be possible but that a deed of variation would be required. A few days later (again, after chasing), the managing agent followed up with a formal letter which.... told us we'd have to pay a small fine for the carpets we've already removed in violation of existing lease (we haven't touched them!!) and listed other, completely unrelated deeds of variation to the lease which we hadn't mentioned or requested. Among these was a variation which required the purchaser to request written permission from the freeholder for subletting the flat and to bear any associated legal costs - something both our and our buyer's solicitors were shocked by.

Our solicitor replied almost immediately asking for urgent clarification on the additional deeds of variation mentioned in the letter and for written confirmation that the flooring can be extended. This was Thursday of last week. We are once again trying to get anyone at Hamilton King to confirm when they plan to respond to the letter.

Our side of the chain is ready to go and getting anxious at lack of progress. But as this is a deal-breaker for our buyer we can't proceed without this being resolved.

Does anyone have any ideas about how to move this matter along? A fresh perspective would be very welcome as we're at wit's end,

cattie

It is pretty standard for leasehold flats to have a clause regarding floors needing to be carpeted, as is a clause such as you have mentioned regarding subletting & for the leaseholder to bear the freeholder's legal costs as well as their own.

A deed of variation is not a simple matter & I'm surprised that your solicitor seems to have the idea that it can all be sorted very quickly.

As all the flats in your building will no doubt have the same clauses in their leases, it could possibly cause problems in the future for anybody who lived below a flat that was covered solely in laminate flooring & was disturbed by the noise from above.

eddddy

As cattie says, I'm a bit surprised that your freeholder is allowing this variation.

For example, I've a lease here where the lessor (freeholder) covenants:

"That every lease of a flat in the building... shall contain Lessee's covenants similar to those contained [in this lease]"

And one of the regulations within the covenants relates to laying carpets.

So I'd assume that the freeholder cannot waive that regulation/covenant for one leaseholder, without getting agreement from every other leaseholder, and varying all their leases.

But if your solicitor says it's feasible, I guess it must be.

aligee_2

Thanks, both. We're still patiently waiting for confirmation in writing from the freeholder so we'll see what happens. I'll update...

ognum

Is your flat on the ground floor? It it is not if I was the owner below I would be expecting compensation from the freeholder if he varies the lease for your flat to make up for the trip trapping over my head.

I would object strongly!

Sorry, probably not what you want to hear.

Brown_Eyed_Girl

From trying to get one sorted, my understanding is that Deeds of Variation aren't always easy, particularly on issues that would relate to other leases - in some cases I've seen things in leases that suggest you can't vary it so much that it would be substantially different to others.

My sellers solicitors haven't even asked the management company if its a possibility on something with the one i'm buying - so having the conversation is a good start.

Surely though there is some wiggle room in the current lease? It says "carpets or other suitable covering". The point I imagine is in relation to the sound absorbency of the product being used.

Therefore would the lease need to be varied if you could see agreement that another covering that isn't carpet qualifies under their restrictions? I could be that there has to be extra insulation to mitigate etc etc.

aligee_2

That wording "wiggle room" and the fact the flat has always had 40% laminate flooring (with sound proofing layer underneath) is what we're counting on. Alas, no response from the freeholder yet.

We had a downstairs neighbour for over 5 years (she's since sold the flat and rented out) - no noise complaints.