Obtaining consent for extension in share of freehold

AnotherJoe

MarianeJ wrote: »

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..

I think you are at risk of being sued even if you get it right !

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

<snip>

Is your contractor a lawyer, or perhaps a builder?

FWIW I am neither but in your case I'd give it up as a bad job and either stay as you were or move to get more room.

The "solution" of a freestanding building completely separate not tied to the walls smacks of unrealistic desperation, and would only work if you were prepared to sit out the uncooperative freeholder until they moved and then tie it in (hoping that whoever replaced here didnt have the same attitude!).

And, if you came to sell, and were asked "why on earth is it like this" you'd have to fess up to the legal implications (plus if she was so minded she could argue that electric cabling to the new extension was an addition and sue you anyway. Or she could sue you arguing its "really" an addition by the back door. So you are on a hiding to nothing.)
Choose your battles. This isn't one you would seem to be able to win.

Okrib

I think you are getting very confused.

By the sounds of it you are a freeholder and a leaseholder.

The freehold typically comprises the building and the total plot of land, this will be shown on the land registry. Within that freehold are leases. Your lease will also be shown on the title plan at the land registry. So for a building split into 3 flats there will be 4 title plans on the land registry.

I live in a similar set up. I have the ground / lower ground maisonette and have a lease for all of the outside space, with the exception of the walkway to the door. This is shown on the title plan.

You need your title plan and that of the freehold as well to confirm because what you are currently saying sounds extremely unlikely to me.

What is likely the situation is that the freehold comprises the building and all land around it to the borders of the plot, and you have a lease for part of the outside area.

MarianeJ

Thanks so much guys seriously; really appreciate your help

So our land registry says:

"This register describes the land and estate comprised in the title. Except as
mentioned below, the title includes any legal easements granted by the
registered lease but is subject to any rights that it reserves, so far as those
easements and rights exist and benefit or affect the registered land.
...
The Leasehold land shown edged with red* on the plan of the
above Title filed at the registry
...
As to the part tinted blue on the filed plan only the basement is
included in the title."

Does that help??
Thanks


*red edge: includes garden

Okrib

Yes, so your lease includes the garden, which will be let of the freehold. This is normal.

Next you need to find the memorandums and articles of association for the freehold company to find out whether you need all freeholders to agree to your plans.

Finally, if your lease states that permission cannot reasonably be withheld, and you already have planning permission, personally I would get a legal letter to this person trying to stop you detailing why she would not succeed in any legal action and then serve party wall notice and crack on (following the appropriate timelines). But that’s just me.

MarianeJ

So if it belongs to us and not the freehold, does this mean we don't require consent for additions (non-structural)?

What I'm still unsure is that wording around additions ; if the lease says "structural alterations or additions" , are they talking about about structural additions? And if so, does this mean that we are allowed to make an addition to what's not in the freehold's demise? (without cutting, maiming or injuring the structural walls)

Thanks Okrib, I agree with you, we are currently going through the Party Wall agreement. Having a proper letter from the lawyer to her does make more sense than our approach...

loubel

Our lease says [ ] we have an absolute covenant on «!not to cut, maim or injure any structural wall

The Court of Appeal has very recently ruled on a similar case that to consent to a breach of covenant over which the freeholder does not a discretion to do so would leave the freeholder in breach of their obligation to enforce the lease covenants and at risk of court action. Look up Duval v 11-13 Randolph Crescent Ltd

Okrib

To clarify, your property (all of it) belongs to the freeholder - of which you are one.

You wear two hats. You are a freeholder and as the freeholder you have granted yourself a lease, so you are a leaseholder as well.

You do not own the flat / land on your own, but as a shared member of the freehold company. The freehold company has given leases to various parties - one of which is you.

It is vitally important you understand this point, which you currently do not seem to.

Edit - you absolutely need permission from the freehold company before commencing work. The work you - as a leaseholder - plan on doing is on their land. But it says permission should not unreasonably be withheld within the leases. And in my opinion this work is absolutely structural.

bouicca21

This whole thread is getting worse. I thought OP had finally understood the garden, patio, or whatever it is called is part of the freehold that is leased to her.

It cannot be built on without the consent of the freeholder (I.e. OP plus the others who hold a share). Even if the consent is given, the freeholder will become liable for the structural maintenance of the extension. This will upset the current balance of contributions to the service charge. If I held a share in the freehold I'd be insisting on rewriting all the leases to make sure OP contributed more. This will be expensive. I'd expect OP to pay all the legal fees.

TBH it's time OP gave up and moved. The extension is not going to happen.

CocoLouie

As others have stated OP based on the information you have provided you don't own the patio/garden which you think you do. You lease it but own a share of the freehold which owns it.


The person who is objecting to consent is not unreasonably withholding consent as there is major implications to the freeholders & leases if you were to construct. If it is me I would withhold consent and giving how confused you are and your explanation the other freeholders who had originally said they would give consent probably don't realise the implications of the build.

MarianeJ

We have already confirmed that we would be responsible for any damages or service charge/insurance increase.

Here's our lawyer's advice on this point:

"Having considered the reasons which the freehold (via Flat 2) have put forward I believe that those have been adequately addressed by you. On the balance, refusal based on ‘complications’, ‘damage’ etc are not reasonable explanations for refusing consent under clause 3(9). A refusal is deemed to be unreasonably when it is based on a pecuniary loss which can be compensated. Therefore, in circumstances where you and your partner have agreed to remedy any damage, and indemnify the freeholder and any neighbouring properties for damage, refusal to provide consent for this reason would be deemed unreasonable. "

Please ignore the structural aspects; our engineer said we could do it non-structural, and even if we don't do it, we need to have that option as a back up to negotiate consent.. either we do it structural, providing a green roof, or non-structural, without green roof..

Regardless of whether a nonstructural extension can or cannot be done, hence ignoring the cutting/maining/injuring walls absolute covenant, do we need consent for an addition that is not in the freehold's demise?

Sorry, this is all so confusing...