Obtaining consent for extension in share of freehold

SmashedAvacado

Has your lawyer looked at the 1927 Act?


There is a piece of legislation that may help you here and it applies regardless of what the lease says. This can allow you to make improvements where they don't damage the landlord's interest.

s3 of the Landlord and Tenant Act 1927 allows improvements regardless of what the lease says where the work:

(a) is of such a nature as to be calculated to add to the letting value of the holding at the termination of the tenancy; and
(b) is reasonable and suitable to the character thereof; and
(c) will not diminish the value of any other property belonging to the same landlord, or to any superior landlord from whom the immediate landlord of the tenant directly or indirectly holds;

You need to look at the wording of your lease carefully because the repairing obligation is relevant to this. but perhaps in the circumstances, it might be worth you asking the freeholder to give consent by virtue of the works being improvements under the 1927 act and let them respond. They cannot reasonably refuse such an application so would need to be confident that your works were not.

MarianeJ

Thank you smashedavacado!

Very helpful;
Point 3 was raised by the flat above us; they said their local estate agent said it would reduce the value but ours said it's not true, and so did our lawyer. How can this be proved? How can we prove the contrary? How do we know who's right?

CocoLouie

It can all be very subjective. Your solicitor is saying it would be unreasonable to withhold consent but the person objecting can easily find a solicitor to say the opposite. The same will happen for the value of the property, although an estate agent isn't an expert on it your would be better getting the opinion of a RICS surveyor but again if you find one that states it won't affect the value another could say it would.


The only real winners out of all of this will be the solicitors as it will get expensive to fight for it

SmashedAvacado

You apply to consent from the landlord
The landlord has to respond.
The neighbour makes representations to the landlord, not you. You can point out to the landlord that you do not consider that this will be the case, but you don't need to engage directly with the neighbour. You can make it clear that the landlord is under an obligation to act reasonably regardless of the clause in the lease, and that includes in considering any objection the neighbour might have.

If the landlord objects, your recourse is to the landlord for acting unreasonably. You can apply to have the court declare that the landlord acted unreasonably and go ahead with the works. or go ahead with them in any event, and then use the landlord's unreasonableness as a shield to any action from the landlord. your neighbour doesnt have a direct right against you to object. only via the landlord.

SmashedAvacado

MarianeJ wrote: »

Thank you smashedavacado!

Very helpful;
Point 3 was raised by the flat above us; they said their local estate agent said it would reduce the value but ours said it's not true, and so did our lawyer. How can this be proved? How can we prove the contrary? How do we know who's right?

It is the value of the landlord's interest in your neighbours property that is relevant - not the value of your neighbour's interest. It is unlikely that your landlord's interest will be worth that much and certainly would be unlikely to be impacted.

MarianeJ

CocoLouie wrote: »

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.

So basically anyone in a share of freehold would own the garden of the neighbour below, regardless of whether the lease says it's in our demise or not?

CocoLouie wrote: »

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.

There's some misunderstanding in what we intend to do..
We do not make any structural alterations within the flat (we removed all of them to respond to the freeholders concerns), hence no risk. The structural addition would only involve drilling through the existing structural wall, not taking it down as it is already fully opened (windows). Hence there is nothing as major as you picture.

What I'm confused about are those leasehold/freehold aspects, which everyone else is... one says black, another says white, so it's hard to draw any conclusion... at the end of the day, all we want is to reassure the other co-freeholders.. and the best option for everyone is to waive the absolute covenant so we can do the green roof the floor above us..

How do we waive of covenant? does it have to be everyone or can it just be the ones giving consent?

MarianeJ

SmashedAvacado wrote: »

It is the value of the landlord's interest in your neighbours property that is relevant - not the value of your neighbour's interest. It is unlikely that your landlord's interest will be worth that much and certainly would be unlikely to be impacted.

Right, thanks for that; then I really don't see how that would affect the whole building as we are definitely not making anything that breaks the character of the building (that was our biggest focus considering we had to consider the fact that we were in a conservation area and planning had confirmed we respected all these aspects) nor puts anyone at a disadvantage (e.g building in front of a window etc). If anything, we only add value as they ll have a view on a green roof rather than a table with chairs. The garden was in a terrible state (abandoned) - and we aim to make it pretty - modernised. I'm pretty sure she'll end up very happy and this whole thing's would have been useless but well...

MarianeJ

CocoLouie wrote: »

It can all be very subjective. Your solicitor is saying it would be unreasonable to withhold consent but the person objecting can easily find a solicitor to say the opposite. The same will happen for the value of the property, although an estate agent isn't an expert on it your would be better getting the opinion of a RICS surveyor but again if you find one that states it won't affect the value another could say it would.
The only real winners out of all of this will be the solicitors as it will get expensive to fight for it

THAT IS EXACTLY WHAT ANNOYS ME HERE
That's what I'm after and what everything I get told just feels like something someone else could turn upside down... and this is why we dont want to give up on the extension... it's been 5 months now since we're working on that consent and have made so many compromises along with such high fees here and there...

bouicca21

What you have to do is present concrete solutions to the problems. So you are prepared to take on the additional cost of maintaining the extension? How?

And please, please, get your head round the fact that you have a lease on the garden/patio, and not a freehold. If you are not capable of understanding the difference between a leasehold interest and a freehold, you have zero chance of persuading anyone that you understand the legal implications of your proposed extension.

AnotherJoe

MarianeJ wrote: »

Thank you smashedavacado!

Very helpful;
Point 3 was raised by the flat above us; they said their local estate agent said it would reduce the value but ours said it's not true, and so did our lawyer. How can this be proved? How can we prove the contrary? How do we know who's right?

You can't prove it, ultimately all you could do is take it to court and argue your cases in front of a judge.

MarianeJ wrote: »

So basically anyone in a share of freehold would own the garden of the neighbour below, regardless of whether the lease says it's in our demise or not?

Yes, that's what the freehold means, they own it. You have the right to use it, however
to build on it you'd need permission of the freeholders.


You seem to have got so far into this you've lost sight of the fact that you are likely going to kick off an expensive legal battle you wont win even if you win, since it will cause a lot of hassle with your neighbours (especially if you start suing them for "unreasonably" withholding consent which was one comment I've seen here !!!), probably cost as much as the extension (making it financially pointless) and making it very difficult to sell the place for everyone for years to come because thats how long a legal case could last for.