Help! Neigbour has built decking over ROW

Debt_Free_Chick

whist wrote: »

The grantor/lessor is the freehold company. And I am the lessee as well as a quarter lessor.

It certainly complicates matter trying to get the leashold company i.e myself and my neighbours to sort it out. I am the only one affected by this and even if we have legal obligations, how do I get (us) to fullfill it. 2 of the flats are now rented out. Do I write to the freehold company and then sue if they dont do anything?

It's very confusing .

Yes. There are two completely separately legal entities here.

Firstly - you as a leaseholder/grantee. You have individual, private rights - especially in relation to the easement.

Secondly - the freehold company/grantor. They have "corporate" obligations - especially as the grantor in relation to the easement.

You won't be suing yourself, personally. But you would be required to take some action as a Director of the freehold company. And, of course, to "encourage, cajole and/or force" your co-directors to act too.

It's not you, personally, who enforces the grantor's obligations in relation to the easement. It's you and the other directors, acting in accordance with the Memorandum and Articles of Assocation of the freehold company who are required to act.

I would guess that decisions are by a majority of Directors and they must act in the interests of the FH Co. They can't say "oh, this doesn't affect our lease, so we don't care what happens". They must say to themselves "as directors of the FH Co, we must honour our legal obligations".

Your problem is the FH Co and its Directors. They clearly have not taken their responsibilities seriously up til now, so I don't hold out much hope they will act properly in relation to this issue.

Does the FH Co have any professional advisers? A solicitor?

Do you and the other directors really understand what your legal obligations are as directors, under the Companies Act?

Now might be the time to replace the FH Co with a professional, unless you are all prepared to take the role seriously. Sorry to be blunt, but these situations "work fine" until there is a dispute like this. In this situation, you need someone independent to guide the directors through the legal maze. Otherwise - as a director - you and the other directors can be personally liable for the cost of any negligence (failure to act lawfully). Claiming ignorance of your duties will get you nowhere - or perhaps will get you a fine or disqualification as a director.

Write to the FH Co at its registered address. Just address the letter to "The Directors". Send a copy to each director, individually, at their home address.

Refer to the easement - quote it precisely. State that, as the grantee, the FH Co (as grantor) is in breach of the easement as you no longer have "a right of way at all times and for all purposes over and along the pathway shown on the plan"; that the pathway is obstructed and no longer identifiable. Tell them that they have a duty to restore the pathway and to restore your unobstructed right of way and that they have 30 days to do so.

Then, as a Director of the FH Co, write to all the other directors and the Company Secretary. Refer to the letter that the FH Co has received from one of its leaseholders (don't say "from me" as it confuses the roles). Ask that the Company Secretary call a meeting of the Directors - extraordinary meeting, if necessary - so that the matter can be discussed.

Please don't tell me you are also the Company Secretary ..... :wall: :wall:

Post back if you are!

Of course .... you might want to consider resigning as a director before any of this kicks off. Then you can act purely as the grantee/leaseholder and leave the other directors to sort it out. If you do, resign before you take any further action; before you put anything in writing.

If you do this ...... you might be able to get legal help, if you have legal expenses assistance as part of your contents insurance.

In the first instance, the FH Company needs to sort this out. If they fail to do so, then you need to see a solicitor to act for you. thinking about this situation .... why not resign as a director of the FH Co?

HTH

whist

Thank you for your comprehesive reply DFC, I only became a director recently and am not particularly bothered about whether or not I am a director. My problem neighbour is the company secretary and one other neighbour is a director. THe other is renting out her flat and I dont believe she is actually a director. I have never met her and I think she lives abroad.

If I resign as director, can I do this in writing only or does it have to be confirmed by someone else.

Also if I resign , would this mean I have less say in the matter i.e when the matter is being discussed I wont be there to represent my views. There will only be 2 directors left one of whom is the source of the problem.

What advantage would I gain from relinquishing my direcotorship? Surely as a director I can then cast my vote on what needs to be done.

THe FH co does not have an advisor and none of us relly know what our responsibilities are. We only pay someone to do the books annually. Unfortunately none of us have taken this seriously because no major issue has occured.

I do have legal cover with contents but they have not got back to me as to whether I can claim or not. They seem to be reluctant from what they have said so far.

Will I still be able to claim if I am a director of the company?

Debt_Free_Chick

Very difficult situation. Especially with the neighbour being a director AND company secretary. Strictly speaking, they should "opt out" of any meeting of the FH Co regarding this as they have a clear conflict of interest. But I guess they would not understand this duty and would see that they have an opportunity to resolve the matter to their benefit, as a leaseholder.

I wonder why your legal expenses insurer is being reluctant. did you tell them you were a director of the FH Co?

If so, perhaps call them again and ask them to admit the claim, if you resign as a director.

You really need advice and representation here - because I don't think the other directors will understand their position and are likely only to take things seriously, if you are represented by a solicitor. Which you either have to fund yourself, or get your insurer to cover.

Given the whole situation, consider resigning as a director. Honestly, I think it's more trouble than it's worth. It doesn't mean that any of you "can protect your own interests" .... which is often what those in your position are led to believe.

Your choices are to - ignore the Planning Permission issue - and talk to your neighbour again. Hopefully, I've given you some ammunition .... that you are trying to sort it out in a friendly way, but if that you cannot resolve matters, you will need to raise the issue formally with the FH Co.

Or

Up the ante and get legal representation, possibly at a cost to you.

And think about whether or not you want to be a director. Here's a guide to being a Director or Company Secretary and this relates to Flat Management Companies.

post back with any other thoughts - I'm happy to try and help so I hope you don't think I'm fobbing you off!

whist

Thanks DFC. You've certainly given me something to chew over. I will wait and see what my insurance company come back with. Hopefully I will be allowed to claim on the legal cover. if not I'm not sure I can afford to pay for a solicitor myself and the way things seem to be its, not going to be straigt forward.

I'm certainly not going to ignore the decking but I will do things within the law as best as I can. Any accidental damage to the decking in the meantime wont be a mourned by me.

I'll keep you posted.

Phil_L_2

I used to live in a maisonette with this arrangement. In our case you were automatically a director of the freehold company when you bought the property and the only way out was to sell up. There was talk at that time (1990) regarding regularising this arrangement as commonhold. The managing company was a dormant company which removed most of the requirements of the companies act and simplified things no end. I suspect that your managing company is set up in the same way.

In terms of the obstruction to your access I would write to the offender in your capacity as a company director requiring removal of the obstruction within a specified time, say two weeks, after which time you will arrange its removal at the offender's cost. At the end of the specified period take what action is required and send her a bill. I suspect that getting the money may be difficult but it will make the sale of the property impossible until the matter is cleared.