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How many other leaseholders would support you please?

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.

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.

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

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?

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.

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.

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.

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?

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?

before I address this can I pause for a moment to confirm that you are happy with all of the above so far please?

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.

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Kind regards