Split freehold and lease problem with 2 flats

peter_thomas_2

Can anyone give me some advice please? My mother passed away two years ago and we inherited her ground floor flat. There are two flats on the freehold which is held 50/50 with the upstairs flat. There is also a lease on each property from the the other.

The problem is that the lease which was altered in 1976 has two clauses which make the flat almost unsellable. One restricts any children under the age of 16 being allowed to stay for more than 6 hours and the other states only those on the lease may reside there. In effect if someone bought the flat and then tried to move in a partner it would contavene the lease and they could never have grandchildren or relatives to stay. When these clauses are seen by a prospective purchaser then the deal ends. The people upstairs regularly have grandchildren to stay but a re adamant that they will not change the lease despite me offering to pay a large part of their costs. I am now in th eposition of being unable to sell or rent the flat and my council tax and running costs are causing real hardship. What can be done? Surely just because one party refuses to negotiate the other party should not suffer real hardship?

Any ideas?
Peter Thomas

clutton_2

""http://www.lease-advice.org.uk/"" is a useful website who have a free telephone helpline.

what a draconian pair of clauses ......... they don't sound enforceable to me - just because a lawyer wrote them in a lease does not make them necessarily legal.

peter_thomas_2

thanks for the web site, it looks as though it may end in some form of legal battle, something I could well do without.

clutton_2

with someone as rigid as those who wrote those two clauses i cannot see there being any other option other than to go to law - do let us know what you find out.

i know there is a legal facility to get rid of unrealistic Easements - stuff written years ago, and now no longer relevant to todays world. - i would hope there would be something similar for your situation

Richard_Webster

The other flat owners will have the same problem when they sell assuming their lease wording is the same. Trouble is that unless they are selling the penny will not drop...

You could point out to them that if they are difficult with you then you could be difficult with them in the future. The main problem is that unless they are selling they probably don't realise the implications of it all and won't have any reason to see a solcitor about it.

I had a similar thing happen a few years ago when a client was trying to buy a ground floor leasehold flat where the freehold was shared with the people who had the upstairs flat. The seller was quite willing to transfer his share of the freehold but in this situation the upstairs flat owners' signatures were needed too (and that'll probably be the case for you too!) The others simply refused to sign and gave no coherent reason for their attitude. My client bought the leasehold flat and then tried to persuade them to change their minds, but in vain. Then 2 years later out of the blue they were selling and their solicitors realised that they could not transfer the share of freehold without contacting my client's seller. Fortunately we were able to organise this and provide a transfer signed by him and I charged the other flat owners the costs of all the messing about caused by their initial awkwardness. You may be in the same fortunate position in the future of turning the tables...or the others may never want to sell...

Another way forward, but not guaranteed to realise a good price, nor very ethical, is to auction the flat. Then somebody may buy it without reading the lease properly nor seeing that the freehold would go into limbo (as you presumably will disappear without bothering to get the other flat owners to transfer their share in the freehold), and the poor buyer will be stuck with the flat....

peter_thomas_2

As I never agreed to the terms of this lease but inherited them does that make any difference? Someone mentioned the terms being against Euro or Human Rights law as they are being imposed rather than agreed by myself? If that is possibly the case then I could let the flat and await action by yhe other party.

Richard_Webster

As I never agreed to the terms of this lease but inherited them does that make any difference? Someone mentioned the terms being against Euro or Human Rights law as they are being imposed rather than agreed by myself? If that is possibly the case then I could let the flat and await action by yhe other party.

I can't see how that could be, otherwise everybody who inherited proeprty would be wanting to renegotiate terms of all kinds of agreements, and nobody would know where they stood.

Maybe, possibly, the terms are contrary to the Unfair Contracts Terms Act. You would have to go to court to obtain a declaration that the clauses were ineffective and that would cost a few thousand pounds. No buyer's solicitor is going to be convinced if you baldly state that the terms are ineffective without a court order that says that.

sarah_elton

I can see one way of turning the clauses into a positive - I'd say it's an ideal flat for a retired person or couple, if they don't have grandkids that stay. It's ground floor, perfect if their mobility isn't great, and they're guaranteed not to have noisy kids move in above them.

Has your EA been really pushing it as a retirement flat? Even in bad markets like this there is always some demand, because people's health deteriorates and they're forced to move out of houses. It probably can't be marketed as "retirement property" per se, because that usually implies a building with a warden, but they should be able to come up with some language that gets the point across.

You've probably thought of this already, just seems to me that the flat has a market, albeit a very restricted one. You'll get nowhere marketing it as a normal flat then telling people when they turn up about the lease issue.

Psss

Richard_Webster wrote: »

I had a similar thing happen a few years ago when a client was trying to buy a ground floor leasehold flat where the freehold was shared with the people who had the upstairs flat. The seller was quite willing to transfer his share of the freehold but in this situation the upstairs flat owners' signatures were needed too (and that'll probably be the case for you too!) The others simply refused to sign and gave no coherent reason for their attitude.
Another way forward, but not guaranteed to realise a good price, nor very ethical, is to auction the flat. Then somebody may buy it without reading the lease properly nor seeing that the freehold would go into limbo (as you presumably will disappear without bothering to get the other flat owners to transfer their share in the freehold), and the poor buyer will be stuck with the flat....

I have a friend who is going through the same problem at the moment and is very worried about her flat becoming unsaleable. She owns a ground floor maisonette and has a share of the freehold with the owner of the first floor flat and also a leasehold. The other freehold owner is currently living in Spain and renting out her flat. My friend has a buyer but the other freehold sharer is refusing to sign the freehold transfer form.

Is there anything that can be done about this, without the signed documents my friend will loose her sale and likely also, the new property she is attempting to buy?

PasturesNew

You could use that as a selling point. There are many people who would not want to live in a flat that had children running about, so that might attract good buyers.

There are some entire developments that were built to be child free because older people don't want to live near kids.

Update: here http://www.guardian.co.uk/society/2003/may/04/housingpolicy.childreninbritain

chappers

The other way to make them see sense is to maybe take action against them for contravening the clauses in their lease about having children to stay over.
How you go about that I don't know.
seems like they are just being bloody minded,