Share of freehold bought without consent of freeholder?

HiroA

eddddy said:

HiroA said:

That's  good news!  The only thing  that bothers me is that they say they would only let me join the company on completion, not before - I don't feel I have much protection. 

I guess you need a legally binding agreement stating that will happen - and the agreement also contains all the important terms of the joint freehold ownership.

I would use a solicitor to do that, but I know you want to avoid that.

HiroA said:

According to the advice from the latest solicitor, this sort of enfranchisement claim may ony be accepted as an exemption when landlord seriously fails to manage the property, reducing the value etc.  

As you're finding out, the law around these things isn't clear-cut. Different lawyers have different opinions.

You've mentioned one case ("Cade vs Izard") which apparently supports your opinion, another lawyer might find other cases which don't support your opinion.

If it ends up in court/tribunal, it would be case of both sides arguing their case - based on how each party interprets the legislation, any case law that each party can find, any precedents that each party can find, etc.

If A and B hire a super-experienced lawyer who knows the legislation, case law, precedents, etc really well, you might find it challenging to 'beat' them.

 eddddy said:

HiroA said:

That's  good news!  The only thing  that bothers me is that they say they would only let me join the company on completion, not before - I don't feel I have much protection. 

I guess you need a legally binding agreement stating that will happen - and the agreement also contains all the important terms of the joint freehold ownership.

I would use a solicitor to do that, but I know you want to avoid that.

HiroA said:

According to the advice from the latest solicitor, this sort of enfranchisement claim may ony be accepted as an exemption when landlord seriously fails to manage the property, reducing the value etc.  

As you're finding out, the law around these things isn't clear-cut. Different lawyers have different opinions.

You've mentioned one case ("Cade vs Izard") which apparently supports your opinion, another lawyer might find other cases which don't support your opinion.

If it ends up in court/tribunal, it would be case of both sides arguing their case - based on how each party interprets the legislation, any case law that each party can find, any precedents that each party can find, etc.

If A and B hire a super-experienced lawyer who knows the legislation, case law, precedents, etc really well, you might find it challenging to 'beat' them.

 

I think I will definitely suggest a legally binding document if they insisit.   I've thought about it and think I will make a claim to county court as it is the only insurance that I have.  The latest solicitor said if I still wanted to,I could do that in pararell with the negotiation.  I will mention that to them when needed, that the claim can be withdrawn if a voluntary agrement was made but that I need to protect my freehold share. From experience I don't think they will hire a lawyer, I think B will represnet themselves on that occasion.  I will make the claim as straightforward as possible, using the TOLATA 1996 reason as the main argument as it's clear cut, and also LRHUDA 1993. I think I now have the correct form so will start filling in.    

But I will make a claim mainly to use it for negotiation.

I really don't know why they don't want to buy the third of freehold from A and I, then let me join the company so that the freehold is owned by the company.

 

HiroA

Most importantly, now that I have agreed the terms/premium and made an effort for negotiation to avoid court actions, I hope Court will rule in my favour, if hearing does happen.  I hope that the Court will rule so that each flat can have equal shares, which seems to be the fairest and best conclusion.  

eddddy

HiroA said:
I hope that the Court will rule so that each flat can have equal shares, which seems to be the fairest and best conclusion.  

Courts don't really make rulings like that. 

They make rulings according to the law, and there is no law saying that each flat must have equal shares.

Your case is that the law says that A and B's notice is invalid. So the court will either agree with you - and rule that the law says the notice is invalid, or disagree with you and rule that the law says the notice is valid.


(So I'd suggest you make sure your case for the court centres on the law - quoting the relevant legislation, paragraphs and wording, etc. Not about things like fairness in splitting the freehold or bad behaviour by the other parties etc.)

HiroA

eddddy said:

HiroA said:
I hope that the Court will rule so that each flat can have equal shares, which seems to be the fairest and best conclusion.  

Courts don't really make rulings like that. 

They make rulings according to the law, and there is no law saying that each flat must have equal shares.

Your case is that the law says that A and B's notice is invalid. So the court will either agree with you - and rule that the law says the notice is invalid, or disagree with you and rule that the law says the notice is valid.


(So I'd suggest you make sure your case for the court centres on the law - quoting the relevant legislation, paragraphs and wording, etc. Not about things like fairness in splitting the freehold or bad behaviour by the other parties etc.)

Ok, it's just because I have been told that court would favour the party who made an effort to resolve issues, so I thought I may include the brief details of the negotiation to date.

What I meant was that Court may take it into consideration the impact and consequences of its decision on the validity also -  my argument could include that allowing a claim like that may not help to improve the relationship, but may even be the cause of future actions. Also, as my flat is on the top floor it's important for me to have a say, roof is the area for major maintenance.

But I will make sure it centers on the law.

ExEstateAgent

Hi,

Don't overcomplicate an already complicated matter. The gardens and roof and who is responsible for what etc., is written into your lease. Purchase of the freehold doesn't change the leases. They can only be changed if all parties agree, and will be a separate legal matter (getting solicitors to draw up revisions etc.). 

If you were to lose your share of freehold, just for example, your freeholders (i.e. the other neighbours) would be responsible for fulfilling the terms of the lease and if they failed to do so you could take them to tribunal, if for example they refused to repair a leaking roof. 

You may want to point this out to your seemingly ill informed neighbours! 

HiroA

I don't think the "voluntary" arrangement is going to happen as it is not really a voluntary arrangement as the notice is not withdrawn, and the solicitors I approached  are reluctant to get involved.  I've approached several to ask if they could represent me under these circumstaces but no one said yes.  I can see from their polite decline or brief questions that the suggested arrangement is not something proper.  I've asked B to let me join the company now and cancel the notice so that we could proceed with a normal voluntary purchase with no complication or risks attached, but they are not willing to.  So I have finally explicitly warned them about the possible court action (although I said that my aim was to avoid court action), and that if the claim is lodged the enfranchisement process will be halted until the hearing date. 

HiroA

Just an update.  So as they won't withdraw the notice the informal arrangement is going to be problematic nor realistic and they stopped communication since then.  Then A emailed me to say that he was not minded to serve a Coutner Notice but allow the due process, and that if I decide to start a court case I do it at my own risk.  So I've completed the application and am going to take the documents to the court within a couple of days.  

ExEstateAgent

Good luck and do please let us know how this pans out. I am still of an opinion that you can't be forced to sell your share, as you are a leaseholder and resident, and it's owned by you, not a company.