I am the Leasholder and joint Freeholder of a flat in a converted house with 12 others.The Lease says “Not to make any structural alterations or structural additions to the demised premises or any part thereof without the previous consent in writing of the Lessors”. The attic space is not demised to any Flat so stays with the Freeholder.My 3 bedroom flat is located on the top two floors (i.e. it's a maisonette with an internal staircase) of a Victorian house. I share the lower floor with a neighbour who has a one bedroom flat and a “studio/store” room on the upper floor (i.e. next to my bedrooms) which is accessed via an external staircase. The upper floor is quiet and this is why I bought the flat.In 2006 the neighbour asked for permission from all Freeholders to enter the communal attic space via an internal staircase to access her “studio/store” and make her flat into a two bedroom flat. She presented a plan in which admitted she did not own the attic space. This is confirmed in the Lease with clear boundaries excluding this area.I refused permission because I wanted to keep my sole living rights to the top floor. Another four of the Freeholders never responded to the proposal. A further two failed to indicate agree or disagree. Two Freeholders said yes but one sold in 2007 and another in 2011. The remaining four Flats said yes to the work but my neighbour forgot to sign her letters. My neighbour cut the joists, constructed the staircase she wanted and also added on an extra room (not part of her 2006 plan) into the attic void sometime in 2008. She got Building Regs and planning consent but as I do not live there I only became aware of the potential building work in 2009 and asked the Directors of the Freeholder to instruct the management company to issue a warning notice against potential building works. The Directors did nothing.In 2010 it was confirmed that the work had been done and again I asked the Directors to do something about it but they said it too late now, “what’s done is done”. In 2011 I raised the matter again at the annual meeting of Freeholders pointing out the Breach of Covenant and the right to a survey. My neighbour agreed to pay for a survey to be done to assess the value of the work undertaken. The surveyor report was pathetic, no calculations, no valuations just a comment that said there is a “nil value”. Finally my neighbour has instructed Solicitors claiming that the majority of flats consented but somehow it was not entered into her deeds. They will however pay £1,500 to the Freeholders to resolve the matter.The management company is weak and doesn’t want to issue a Breach of Covenant in case there is a costly battle. I am not happy that the lease is not being used to protect my interest and that if I move back in to my Flat I will have increased noise from my neighbour. She may also decide to take more attic space while I am away if a precedent is made.Since 2008/9 my neighbour has been renting out her Flat out as a two bedroom flat and makes an additional £200 pm month which she solely pockets. This would not have been possible without stealing the communal space, albeit she owned the “studio/store” room.Do I have a legal case to get back my sole living right to the top floor and how can I persuade the Directors to follow the lease and issue a Breach of Covenant?
Province/Country relating to question : UK
Speaking with the Freeholders and my neighbour.
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How many other leaseholders would support you please?
2 others have confirmed. Others don't turn up to meetings.
Thanks. In terms of forcing the tenant to remove the work she has done this is going to be dfficult as she will likely deploy an argument that the freeholder is estopped from taking action because they failed to do so for a year or more and she proceeded acted on this reliance. However this does not mean that you should not necessarily try and even if you are unsuccessful that she should acquire the space for free
First of all you would need a resolution to take action. If you can't obtain this you could attempt a derivative action as a minority shareholder.
The freeholder will find it has substantive powers most likely in terms of breaches of covenant with the tenant being responsible normally for the freeholders reasonable costs in this respect.
What about the 12 year deadline for breach of deed contracts?
Depending upon all the evidence and the actions and lack thereof potentially of the freeholders to date she may or may not be able to establish reliance on their inaction to deploy an argument of estoppel. However even if she is successful in this respect, the freeholder may still pursue a potential claim against her for monies in respect of her unlawful occupation of the space.
There is no issue of limitation of 12 years or otherwise. Clearly she has not established any form of limitation for herself nor can she acquire a prescriptive right or title to the area concerned. However there is the issue of a potential defence in equity as above.
The freeholder can certainly take action in respect of the apparent breaches of covenant and trespass. Speed is of the essence in this respect. Normally the freeholder can recover such costs from the tenant under the provisions of the lease.
What about the fact my neighbour changed her plans after asking? Presumably this means she never communicated her "offer" or there was no "meeting of minds".
It is not a straightforward case due to the delay however there is litle reason that even if the freeholder is unsuccessful in forcing her to remove the works, that it cannot recover damages for the los in value to the freehold owing to her unlawful occupation of the attic
This issue along with others no doubt would need to be the subject of a potential court claim. She would need to show that the freeholders actions or lack thereof were sufficient to establish fact whereby it is reasonable for her to claim reliance on their lack of objection. This is for her to show and the freeholder presumably to resist.
I do not suggest she would be successful in this. She is in many ways on the back foot save that she has the potential equitable defence as above. If he freeholder continues to take no action the more difficult it would potentially become as time goes on
If I can't persuade the Directors to issue a notice, how can I ever persuade them to persue for damages?
In exactly the same way as you would try to pursuade them to take any action whatsoever. If they won't you could either pursue a derivative action as a minority shareholder on behalf of the freehold company potentially against the tenant or you may be able to enforce the covenants directly if your lease provides for this - though most leases do not contain such a provision allowing tenants individually to enforce lease covenants against others.
Can I help you with anything else in respect of the above?
My neighbour was one of the Directors of the Freeholding company when this breach happened. She ensured that the matter never got brought up at the AGMs. It seems rather poor justice for those owners that live abroad. What is to stop her taking more space?
You must either rely on the freeholder company to take action or failng which a derivative action or a clause in the lease to allow you to enforce covenants directly.
Why can’t the space go to the highest bidder? Why should the person who steals it solely benefit. It’s like a free for all. Can the Freeholders claim part of her gain in rent?
This is what I refer to above. Even if the freeholder is unsuccessful inn forcing removal of the works it does not prevent the freeholder for claiming monies for the unlawful occupation of the space. As you say there is no such thing as a free lunch. If the tenant is successful in defending her position in equity she must still pay for the space. She can't simply acquire it for free.
How to arrive at a sensible fee for the space? The survey did not work. Why can't I buy the space?
The first step is to decide he qustion of whether the freeholder accepts her occupation of the space subject to payment or not. If it does not then there is a claim to be pursued for her removal from the space which we have discussed above.
If the court rules against her then she must remove her works from the space and the freeholder could entertain offers from you or others which it is free to reject or accept.
Can a majority of freeholders sign away my rights under the lease by accepting her £1,500 offer?
If she is successful in resisting an order to have her work removed then that is tat in terms of the same but then the question of damages arises - her paying for the occupation of the same. Normally a joint surveyor would be appointed to agree a price based on a valuation and ultimately if the parties cannot agree the price will be imposed by a court having regard to such a valuation report.
They can but if this is a below market offer which I suspect it is minority shareholders such as yourself could pursue a derivative action to claim a share of the balance owed.
Can I help you with anything else?
So even if I am willing to pay more to keep what I had, I may not get the chance. The in actions of the Freeholders means they win. I will always have this nuisance and increased noise should I return. Seems rather unfair.
Not necessaily. Consider that she has not acquired title to the area. Therefore it does not belong to her in law. A court is able to determine these matters as above. If it is accepted that the she should pay market value for the same if you are prepared to offer more a court will consider this in the mix. It is conceivable that one outcome could be your acquiring title to the area if you are prepared to make an offer.
This is are complex matter as here are at least three complicating factors. You need to consider appointing a solicitor to represent you and potentially the freeholder to pursue the matter. Time should be of the essence in taking action.
Can I clarify anything else for you?
Will notifing her mortgage providers of the breach achieve anything?
before I address this can I pause for a moment to confirm that you are happy with all of the above so far please?
Well, I understand but naturally was hoping for a stronger case rather than just negotiating for a slighly higher amount. Okay I can take action but looks I will only suffer in getting anything. It seems I have to accept the breach and never get back what I had. Only the Freeholder may get something, of which I have 1/13th. The "theif" get's her gains but most probably at a cheap price. However, I get to keep 100% of the noise!
There is no denying that the delay in action will count against your or the freeholders position. There is no getting away from this. To what extent would depend upon the extent of the freeholders inaction and the potential excuses it may be able to raise and the quality of the evidence that the tenant could bring in her defence.
However it does not follow that she should not have to pay market rate for the area and if you are prepared to offer more than her it may be that you could acquire the area for yourself. Unfortunately there are too many variables for me to give you a simple yes or no answer but the tenants position is far from secure in this respect.
If you have no further questions for now I should be very grateful if you would kindly remember to click ACCEPT in order that I am credited for my time.Kind regards
Yes, thank you.
LL.B (Hons), Prof Dip Law & Practice. 9 years experience in private practice in England
The long delay seems to be the biggest argument against me. However, it was the Directors who procrastinated and failed to issue a warning letter or issue the Breach of Covenant notice. If I take derivative action as a minority shareholder (i.e. appoint a solicitor on my own) can the delay issue ever be forgotten?
If I am successful in and winning some amount for trespass and claiming back my costs. What could I gain as a Leaseholder? It seems any money received for trespass would be paid to all the Freeholders and no doubt get swallowed in maintenance.
I am finding it difficult to come to terms that there is no situation where I could benefit other than receive 1/13th of a very small sum. The risk is huge, the rewards pitiful and the pain ever present.
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What I really want is the peace and quiet that I had before. Buying it is one way but seems unjust given I enjoyed it without the payment before. Is it really gone forever?
Okay so will notifying her mortgage providers of the breach achieve anything?
So procrastination on my behalf or that of the Directors is the best punishment and deterrent to stop her taking more space?
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