Obtaining consent for extension in share of freehold

MarianeJ

Hi!
I’ve been desperately trying to understand parts of our lease which has been translated in different ways by different people involved so I’m really confused and since we are at threat of being sued if we get it wrong, I need your help..
Our lease says “Not to make any structural alterations or additions to the Flat without the Landlord’s approval in writing to the plans and specifications!» and we have an absolute covenant on «!not to cut, maim or injure any structural wall!» which our lawyer said can be waived and given consent for anyway (but how? All freeholders or just majority?)
In our (and our contractor’s) understanding, it’s structural alterations or structural additions, but now our lawyer said addition on its own which is quite a big difference considering we want to do an extension. We obtained planning permission but now need to fight for the freehold’s consent that is being withheld because of one co-owner threatening every other one to be sued if they give us consent (6sqm extension covering the existing patio that sits under their window, which planning confirmed would in no way affect any neighbour, but she persists...).

We have two solutions: trying to obtain it making a structural extension consisting in drilling through the wall (we only remove the large windows so no need to break any wall), but that means injuring the walls which we are unsure how to obtain consent on considering its an absolute covenant...

Second option and I’m not that keen about it, is to make a freestanding extension, where the roof would sit on new walls, meaning we wouldnt need consent nor risk breaching the lease on the absolute covenant. HOWEVER, now that there’s this uncertainty about the addition aspect, that option is now risky. We’d only come up with it as our last chance but we need to know it’d work otherwise we’ll end up never being able to move in that flat....

Hope someone knows how to answer this 🙏🏼🙏🏼🙏🏼

Thanks in advance!!

G_M

Who is 'The Freeholder'?

A company in which each leaseholder owns shares? What do the company's Articles of Association say about decision-making? Must be unanimous? Majority vote?

Tiglet2

Patios and balconies are not normally included in the leasehold title meaning that leaseholders do not own them, but merely have use of. If this is the case in your property, I am not sure if the freeholder would consent to you building an extension on a patio you don't own.

bouicca21

Is the patio area demised to you? And as GM says what arrangements are there for decision making by the freeholding company? What does the lease say about the use of the patio area?

Tom99

[FONT=Verdana, sans-serif]Its not clear to me what you are trying to claim.[/FONT]
[FONT=Verdana, sans-serif]Are you trying to claim your extension is not structural or is structural?[/FONT]
[FONT=Verdana, sans-serif]If you go for the free-standing extension will there be an air gap between the existing wall and the extension. Won't it be draughty and the rain get in?[/FONT]
[FONT=Verdana, sans-serif]Are you then claiming this free-standing extension will be an addition but not a structural addition?[/FONT]
[FONT=Verdana, sans-serif]I think you are playing with words and you need consent but providing you are not cutting, maiming or injuring any existing structural walls the consent cannot be unreasonably withheld. This assumes the patio is within your exclusive demise.[/FONT]
[FONT=Verdana, sans-serif]How are you planning to fix the extension to the existing structural wall?[/FONT]
[FONT=Verdana, sans-serif]Is the 1st floor owners objection reasonable? It does not sound like it.[/FONT]
[FONT=Verdana, sans-serif]The freeholder might want some alterations to your lease, for example excluding your new extension from the freeholders repairing obligations.[/FONT]

eddddy

MarianeJ wrote: »

We obtained planning permission but now need to fight for the freehold’s consent that is being withheld because of one co-owner threatening every other one to be sued if they give us consent (6sqm extension covering the existing patio that sits under their window, which planning confirmed would in no way affect any neighbour, but she persists...).

Just to add to the other comments above...

Gaining planning consent doesn't mean that you should/would necessarily be granted consent by your freeholder.

The planning department don't look at your lease, check your covenants etc, when giving consent.

So it's possible to get planning consent for something which is completely forbidden by your lease.

AdrianC

MarianeJ wrote: »

(but how? All freeholders or just majority?)

You only have ONE freeholder.
Several people's opinions guide the freeholder's response, though, and how that response is decided upon is the freeholder's own internal business.


Take your leaseholder hat off, and put your freeholder hat on - your opinion is one of those that guides it.

...but now need to fight for the freehold’s consent that is being withheld because of one co-owner threatening every other one to be sued if they give us consent (6sqm extension covering the existing patio that sits under their window, which planning confirmed would in no way affect any neighbour, but she persists...).

Then you (with your joint-freeholder hat on) and the other joint owners of the freehold need to decide among yourselves how to deal with that threat.

It's very unlikely any case would succeed, but there would be substantial money, time, effort and blood pressure involved in dealing with it.

Cakeguts

I can see why you neighbour might object to this. At the moment they can see a garden out of their window. In the future if you build an extension they will see a roof probably a flat roof. They may have bought a flat that was not on a ground floor because the wanted the security of the flat not being accessible easily from outside. Your extension roof with change all that.


I think if I was your neighbour I would object as well.

MarianeJ

The patio (and garden) is our own, not the freehold; they only own the load bearing walls basically. And yes actually considering that the covenant only refers to the internal part, technically, we dont need their consent as long as we dont touch the structure and dont make an addition inside the freehold s demise, right?

Concerning the view, we are not cutting it, our patio is 2.7m x 3 long and our roof will be sloping so from their window the garden view wont change. It’ll only cover the existing orange brick flooring and table. Access to thieves is already there and the lawyer said it doesnt add to it in any way. This is the most common type of extension in london and is very minor. They asked for a green roof and we said we were happy to do it but then they changed their mind and insisted on the balcony that planning doesnt allow us to do so i dont know where that negotiation goes....

All we need is 2 people to consent, but for that they need to be reassured that they wont be sued for giving us consent and my lawyer hasnt been very explicative about how to communicate that message... all i know is that she d end up paying for her own lawsuit if she was to sue the freehold and lose the case (which he said is extremely likely).

Now the prob is that the managing company refuses to deal with the matter any further and have made her the lead, allowing her to deal with the party wall matters and everything else. So obviously she is appointing all the surveyors she wants to make us pay as much as possible. 1) she s not even the owner, it’s her parents, 2) she is making decisions on everyone s behalf while all she was told was that she could deal with the matter because she was the only one objecting. Now all the other co owners wait for her to be happy before giving consent and i cant even talk to them. One of the owner was friend with her and got really !!!!ed at how she decided to threatened them all so i know they just want to be reassured but its hard to find the right balance. Of course i want to win but i dont want to be at war with her either. There must be a way....

MarianeJ

That i know thank you
We ve been changing plans 5 times for the neighbours, we sent the application once we knew we had majority; we got one consent but she came up with a threat to stop the next one so cant do much....

MarianeJ

Tom99,
We have told them we were ready to pay premium insurance for the extension and were aware this was on us, but either way, its not a common prt so they wouldnt have to