Freeholder retro consent for wooden floors

ClaraPM

Hello,
I am looking for some advice on an issue we have at the moment with our leaseholder, any help would be appreciated.
Three months ago we bought the top flat of a maisonette. When we viewed the flat there wasn't carpet on any of the rooms, just on the stairs and hallway. Like in most leasehold properties, the lease says that the floors need to be carpeted but we didn't know that at the time and neither our solicitor spotted it during the purchasing process. Three months in since we moved into the property the agency managing the lease and the building realised that we don't have carpet so they informed us that they need to ask for retro consent from the freeholder without mentioning that this might involve a fee. Days later they came back with a letter from the freeholder's lawyers requesting a fee of over £1k to issue a consent request but also making clear that even if we pay they can't guarantee we will get the consent hence we might have to end up paying even more to fit carpet.
Has anyone experienced anything similar before? 
Thank you in advance for your help.
C.

Ditzy_Mitzy

My experience is that freeholders tend to be a law unto themselves.  Needing consent sounds about right, as what is proposed is a variation to the lease.  Generally speaking carpet is required on the upper floors of maisonettes to prevent downward sound transmission.  With no guarantees, you would probably be best off having carpet fitted.  

AdrianC

It's a perfectly normal clause in leases for flats - for obvious reasons of sound transmission to the people below you.

I'm sure your solicitor did notice it - they just never visited the property...

You have a choice.
1. Pay the £1k, and hope the request gets approved.
2. Don't make the request.
The "hope nobody notices" option is no longer available to you.

If the request is refused, or if you don't make it, then you have a second choice.
1. Comply with the lease.
2. Continue in breach of the lease.

If you continue to breach it, then the freeholder can take legal enforcement action against you.
They would almost certainly win, and you would then need to replace the non-compliant flooring with compliant flooring, or face further enforcement action. You would be liable for the costs of any action won against you.

Basically, unless at some point the freeholder shrugs and gives up, fitting carpet NOW is going to be your cheapest option.

eddddy

My guess is that the situation is subtly different from how you describe it. Perhaps more like this...

• There is a covenant in your lease that requires you to lay carpet.

• Leases are generally written in a way that freeholders cannot legally change covenants, and freeholders cannot legally give you consent to breach a covenant.

• So I suspect the freeholder plans to ask their solicitor for legal advice... "Is there any legal way that we can give consent for uncarpeted floors?"

• If the solicitor says "Yes,  there is a legal way that you can give consent", then the freeholder will consider your request for consent (and maybe ask you for a further fee for considering your request).

• If the solicitor says "No, there is no legal way that you can give consent", then that will be the end of the matter.

TBH, leases should be written in a watertight way that prevents freeholders from arbitrarily removing  covenants from one lease, to the detriment of other leaseholders. So your only hope would be if you have a badly written lease.

BUT... there is also some legislation from 1927 (the Landlord & Tenant Act 1927), which implies that Freeholders can't unreasonably refuse consent for improvements to a property. So maybe that would apply, if you describe the wooden floor as an improvement. (But the freeholder can still refuse an improvement, if it's unreasonable).


So overall, I think your chances of getting consent aren't very good.

martindow

I wonder if there could be a third option of getting the freeholder to agree to a sound-proofing layer to be fitted below the flooring.  If this were feasible it could satisfy the condition imposed for the sake of people in the flat below yours.

davidmcn

How much is it going to cost just to get some carpet?

Seashell517

Quite probably not very helpful, but what if...
You lay carpet and then put the wooden floor over it? Complies with the lease but you get the finish that you want?

ClaraPM

martindow said:

I wonder if there could be a third option of getting the freeholder to agree to a sound-proofing layer to be fitted below the flooring.  If this were feasible it could satisfy the condition imposed for the sake of people in the flat below yours.

We already tried that route but the price of underfloor soundproofing is incredibly expensive so in that case, we might be better just paying the fee or fitting carpet. The thing here is that the neighbours downstair haven't complained about the noise at all. 
We are not big fans of carpet for obvious hygiene reasons and allergy-related issues. We were considering fitting a nice laminate on top anyway with a good layer of soundproofing on top of the original wooden floor, which for sure could be considered as an improvement to the property.  
If we end up going the carpet route, I imagine we will have to provide proof of the fitting done to the freeholder?
Thanks, everyone!

davidmcn

ClaraPM said:

If we end up going the carpet route, I imagine we will have to provide proof of the fitting done to the freeholder?

No, I don't see why you would. If they wanted to enforce the breach, it would be up to them to prove that there was a breach. But hardly a big deal to do it anyway?

NameUnavailable

Get a large rug.