Freeholder consent - joint freeholders

arciere

This is vaguely related to problem we are having with our downstairs neighbours about a porch/conservatory that we want to build (https://forums.moneysavingexpert.com/discussion/comment/76652434).
We live in a converted flat with a share of the freehold. Now, I am not 100% sure we actually have a share, technically speaking, because all our 4 names (2 for ground floor flat, 2 for first floor flat) are listed in the land registry freehold title as "proprietors" with no mention of shares or of a management company (there isn't one).
My question is: if we don't have a share of the freehold, but are 'joint freeholders', does it make any difference in terms of making decisions? Are we, individually, owners of the 100% of the freehold? And if that is the case, why should I, for example, need the permission of the other freeholders if I want to build an extension, provided that I respect and obtain all the relevant authorisations? Is it any different than having a management company with, each one of us owning a 25% share?

greatcrested

'The Freeholder' is a single legal entity. In your case, it is owned by 4 people.

You each own, jointly, 100% of the freehold.

The decision regarding the porch (or other decisions) requires the consent of 'The Freeholder'.

Because it is owned by 4 people, those 4 must agree before 'The Freeholder' can be said to have consented.

Probably a majority decision (3 votes) would constitute consent.

Much the same would apply if there was a management company with you each owning 25%.

And to put that into perspective, it is totally logical. It would be crazy if each of the four of you could make whatever decisons you wanted, and do, change, build whatever you wanted, without input from each other.

eddddy

arciere said:

And if that is the case, why should I, for example, need the permission of the other freeholders if I want to build an extension, provided that I respect and obtain all the relevant authorisations? Is it any different than having a management company with, each one of us owning a 25% share?

You own 2 things
1) You own the leasehold of your flat
2) You jointly own the freehold of your building

 As a leaseholder, you are bound by your lease. So the starting point is to read your lease to see what it allows you to do.

Things to check include:

• Is the land you want to build the extension on demised to you (i.e. you 'own it') as opposed to having the right to use it?

• Does your lease allow you to make alterations to your flat? And if so, you probably require the freeholder's consent.

• Do the walls of the building belong to the freeholder (they usually do)? Does your lease allow you to cut them? And if so, you probably need the freeholder's consent.

If your lease says you need the freeholder's consent to do something, the law says consent cannot be unreasonably withheld. (So put another way, if whatever you want to do is reasonable, the joint freeholders cannot stop you.)

But if your lease forbids you from doing something, you cannot force the joint freeholders to allow you. In theory, they can ask you to pay a premium in order to allow it (i.e. you have to pay them each a chunk of money), and/or an objection from just one other leaseholder can stop the joint freeholders from giving you consent.


Realistically it's very unlikely that your lease allows you to build an extension, so it's very likely that all the leaseholders would have to agree to your extension (and if appropriate, agree on how much premium they want from you as joint freeholders).

greatcrested

eddddy said:

arciere said:

And if that is the case, why should I, for example, need the permission of the other freeholders if I want to build an extension, provided that I respect and obtain all the relevant authorisations? Is it any different than having a management company with, each one of us owning a 25% share?

You own 2 things
1) You own the leasehold of your flat
2) You jointly own the freehold of your building

 As a leaseholder, you are bound by your lease. So the starting point is to read your lease to see what it allows you to do.

Things to check include:

• Is the land you want to build the extension on demised to you (i.e. you 'own it') as opposed to having the right to use it?

• Does your lease allow you to make alterations to your flat? And if so, you probably require the freeholder's consent.

• Do the walls of the building belong to the freeholder (they usually do)? Does your lease allow you to cut them? And if so, you probably need the freeholder's consent.

If your lease says you need the freeholder's consent to do something, the law says consent cannot be unreasonably withheld. (So put another way, if whatever you want to do is reasonable, the joint freeholders cannot stop you.)

But if your lease forbids you from doing something, you cannot force the joint freeholders to allow you. In theory, they can ask you to pay a premium in order to allow it (i.e. you have to pay them each a chunk of money), and/or an objection from just one other leaseholder can stop the joint freeholders from giving you consent.


Realistically it's very unlikely that your lease allows you to build an extension, so it's very likely that all the leaseholders would have to agree to your extension (and if appropriate, agree on how much premium they want from you as joint freeholders).

All true edddy, but I think that misses the point of the OP's query.

He is not asking whether as leaseholder he can do this, he is asking whether as joint freeholder he can unilaterally grant himself (as leaseholder) the freeholder consent he almost certainly needs.

eddddy

greatcrested said:

All true edddy, but I think that misses the point of the OP's query.

He is not asking whether as leaseholder he can do this, he is asking whether as joint freeholder he can unilaterally grant himself (as leaseholder) the freeholder consent he almost certainly needs.

@greatcrested TBH, I was tactfully trying to explain why your answer was misleading/wrong.

To summarise...

If the OP's lease does not allow the OP to build an extension - the OP would probably need 100% agreement from his/her neighbours (not 75% as you suggested)

If the OP's lease requires freeholder consent to build an extension - consent cannot be unreasonably withheld - so none of his/her neighbours can veto it. (i.e. the OP's neighbours cannot stop the OP from having an extension. So again 75% isn't relevant.)


Edit to add...

The above would hold true for anything that the OP's lease requires consent for.

However, your explanation of the decision making process could apply to things like which contractors are chosen to repair the building.

arciere

greatcrested said:

'The Freeholder' is a single legal entity. In your case, it is owned by 4 people.

You each own, jointly, 100% of the freehold.

The decision regarding the porch (or other decisions) requires the consent of 'The Freeholder'.

Because it is owned by 4 people, those 4 must agree before 'The Freeholder' can be said to have consented.

Probably a majority decision (3 votes) would constitute consent.

Much the same would apply if there was a management company with you each owning 25%.

And to put that into perspective, it is totally logical. It would be crazy if each of the four of you could make whatever decisons you wanted, and do, change, build whatever you wanted, without input from each other.

Yes, it makes sense 'logically', but I recently read this post on another thread, in regards to a shared garden owned by the freeholders:

If the hedge is jointly owned, can one of the joint owners do whatever they like to it without the agreement of the other joint owner?

Broadly yes, joint ownership confers full rights to each person. 

...so I wondered if that also applies to other matters.

arciere

eddddy said:

Things to check include:

• Is the land you want to build the extension on demised to you (i.e. you 'own it') as opposed to having the right to use it?

• Does your lease allow you to make alterations to your flat? And if so, you probably require the freeholder's consent.

• Do the walls of the building belong to the freeholder (they usually do)? Does your lease allow you to cut them? And if so, you probably need the freeholder's consent.

If your lease says you need the freeholder's consent to do something, the law says consent cannot be unreasonably withheld. (So put another way, if whatever you want to do is reasonable, the joint freeholders cannot stop you.)

But if your lease forbids you from doing something, you cannot force the joint freeholders to allow you. In theory, they can ask you to pay a premium in order to allow it (i.e. you have to pay them each a chunk of money), and/or an objection from just one other leaseholder can stop the joint freeholders from giving you consent.


Realistically it's very unlikely that your lease allows you to build an extension, so it's very likely that all the leaseholders would have to agree to your extension (and if appropriate, agree on how much premium they want from you as joint freeholders).

1) I own it as joint freeholder
2) Yes, with freeholder's consent
3) No walls will be cut, but yes, I assume the building is property of the freeholder. The new structure will simply replace and old shed/entrance that is literally falling apart on our heads.
I guess it all depends on what is considered reasonable. Would it be reasonable to deny consent because someone has phobia of dust? Or because they think that, being Chinese, people (=builders) might think that they are rich and that they could rob them? Or because they don't want to have noise or generally speaking people entering and exiting our door (which is next to theirs) more than 3 times a day?
These are some of the reasons that they gave us. And of course when I pointed out that those reasons don't seem reasonable to me (some are actually borderline irrational), their reply was basically 'they are reasonable because we say so'

eddddy

arciere said:

I guess it all depends on what is considered reasonable. Would it be reasonable to deny consent because someone has phobia of dust? Or because they think that, being Chinese, people (=builders) might think that they are rich and that they could rob them? Or because they don't want to have noise or generally speaking people entering and exiting our door (which is next to theirs) more than 3 times a day?
These are some of the reasons that they gave us. And of course when I pointed out that those reasons don't seem reasonable to me (some are actually borderline irrational), their reply was basically 'they are reasonable because we say so'

If you can't achieve agreement, and it went to tribunal, it would be a case of what an 'average person' would consider reasonable.

And often, both parties would have to provide "expert reports" to support their case:

• e.g. The freeholder might decide to get an expert to report that the dust produced would be excessive (for some specific reason), and potentially damaging to health.

• In which case, you'd perhaps get a report from a different expert saying that the dust produced wouldn't be excessive.

Although TBH, if the complaint about dust is clearly frivolous, the tribunal would reject it without the need for expert reports.

As you can imagine, this could turn into a hugely expensive waste of everyone's time, if one or other party aren't sensible.

arciere said:

The new structure will simply replace and old shed/entrance that is literally falling apart on our heads.

So according to the lease, who is responsible for maintaining the old shed/entrance?  If it's the freeholder's responsibility, you could suggest that you'll get a court order forcing them to repair it (and presumably you'd then only have to pay 50%)

Or you could offer them a deal where you'll pay 100% of the replacement cost, if they stop being difficult.