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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 22517
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Hello! I am a freeholder of the house which is divided in 3

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Hello! I am a freeholder of the house which is divided in 3 flats ( each occupies one floor). I also have the leasehold for my flat on the ground floor. The house has a communal driveway,garages and garden areas around it ( it's a detached house). Currently, I have a terrace at the rear side and I want to extend my flat so that it has an additional room instead of this terrace (the area of the extension will not exceed the area of the terrace by more than 10sqm. (The current terrace is about 10 sqm). The terrace is looking at communal garages and the proposed extension will not affect the access to them nor it will make the driveway any narrower. I have carefully studied the leases ( they are identical for all the flats) and didn't find any particular reference to what exactly the freeholder's rights are regarding the right to extend the house. I can clearly see that by building this extension, I will not take any rights from the other leaseholders as they didn't used this stretch of land around my terrace( there never was a need for it as it is too close to the terrace and also, it is too close to my garage, their garages are situated much further). However, before going ahead with this project I need to be absolutely sure that legally, I am on the right side and the leaseholders can't really object to it. What will be your advise! I look forward to hearing from you. Many thanks! Elena
Please confirm that althouigh they dont use this, they actually dont have any rights to use it even if they wanted to, documented in the lease.
Customer: replied 3 years ago.
If I had the confirmation of it in the Lease, I wouldn't ask you for help as it would be clear for me that I am free to do what I want with this territory. According to the Lease, the whole territory is for common use. However, I feel that I have a strong position as I want to use the space currently occupied by the cast iron terrace and add just a few sq.m to it.

We cannot give a definitive answer without seeing the lease., BUT…

However if you are extending beyond the current veranda and the extra area is part of common parts, you cannot do it without the other leaseholder’s consent.

That really is all that there is to it. Sorry

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Customer: replied 3 years ago.
Can you kindly clarify what this paragraph from the Lease actually means and is it useful in my case?
To the Lessor the right at any time hereafter to rebuild alter or use any of the adjoining or neighbouring buildings according to such plans ( whether as to height extent or otherwise) and in such manner as shall be approved by the Lessor notwithstanding that access of light ot air to or any other easement for the time being appertaining to or enjoyed with the flat or any part thereof may be obstructed or interfered with or that the Tenant might otherwise be entitled to object to such rebuilding alteration or user.'
Thank you!
It means that the freeholder can build what he likes (on land which he has the right to build on) even if it obstructs light or air to other flats.
It doesnt mean that the freeholder has the right to build on any other land.
In your case it isnt the building that is the problem.
It is the extension of it beyond yr existing terrace which needs consent of of other leaseholders becuase they have the right to use common parts and you want to remove part of that right.
Of course, you could offer them money.
Customer: replied 3 years ago.
Thank you! But what about this phrase from the extract that I sent you - ' any other easement ...enjoyed with the flat ...may be obstructed or interfered with...' One of the easements in the Lease is the right of way which gives the leaseholders the right to pass freely through the garden areas and the driveway. Only a small fraction of the driveway will be taken if I extend which I suppose will be an interference with their rights but the Lease seem to give me such right, doesn't it?

I appreciate that but it depends of the other leaseholders take issue with it and decide to take you to court. They have more weight of numbers financially than you do.

On a literal interpretation of that clause in the lease you can build over all common parts completely which clearly isn’t within the spirit of the lease. Either the leaseholders have the right to use the common parts or they don’t.

If it came down to it, it would be for a judge to decide.

What you could do is write to the other leaseholders telling them what you are doing and send plans. Present it as fait accompli. Don’t invite objections, simply tell them.

Send them copy of the lease and highlight that paragraph explain it in just that simple way. It is then for them to take issue if they feel that they can.

I wouldn’t be rushing off to court without getting learned counsels advice on the enforceability of the term.

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