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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24551
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am a leasholder of a Ground floor flat and would like to

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I am a leasholder of a Ground floor flat and would like to extend into the side return and back garden, both of which are demised to me according to the lease. My Lease also states however "not to use the front and rear gardens for any purpose other than garden land ancillary to and in connection with the enhoyment use and occupation of the Lower Flat."

Can the freeholder reasonably refuse consent to build?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

There will likely be a provision in your lease that states not to alter without the consent of the landlord or words to that effect. Do you have the wording from the lease please by any chance?

Customer:

Not to make any structual alteration to the Lower Flat nor alter the plan or elevation thereof nor cut or injure the principal or bearing timbers or walls thereof without the approval in writing of the Landlords to the plans and specifications thereof and to make all such alterations in accordance with such plans and specifications.

Joshua :

Thanks. From what you say you are 100% certain that all the land you wish to build upon is demised to you in your lease?

Customer:

Sorry, trying to copy and paste extract

Customer:

Not happening, yes, it appears that front and back gardens are demised to me.

Joshua :

It may well refer to a plan - generally as long as you are satisfied that all the land is demised to you that is fine. If you want my view of course very happy to assist.

Customer:

Including structure of the building from and including the foundations thereof and up to a level of one half of the depth beween the ceilings of the Lower Flat and the floors of the upper flat and secondly the portion of the front and rear gardens and pathway at the rear all shown edged in green are herein after called the "demised promises".

Customer:

(The front and back gardens are edged in green on the site plan)

Joshua :

Thanks. I presume the area you wish to build on is comprised entirely within the green edging on the lease plan referred to?

Customer:

Yes, it's a very small extention. Less than 2 meters, (both seide retun and rear garden). Garden is approx 20 meters in length.

Joshua :

Thanks. s19(2) of the Landlord and Tenant Act 1927 implies into your lease (and in any event your lease specifies) that the landlord may not unreasonably withold consent for alterations. The landlord is entitled to charge his costs in relation to granting consent but he is not allowed to profit from granting consent - this does not stop some landlordds from trying!

Joshua :

He is entitled to claim for diminuation of his freehold in resect of your proposasl however given that the area is demised to you in your lease this is going to be difficult for him to sustain a meaningful argument for.

Joshua :

The freeholder can request structural reports in respect of any work you intend to carry out on exsiting walls and you may need to serve party wall notice on other flat owners if you intend to carry out such work on party wallsand he can require you to pay his reasonable costs in preapring a licence for alterations or otherwise grant consent subject as above that he cannot profit.

Joshua :

Otherwise he cannot unreasonably refuse consent.

Customer:

OK, I had a converstion and an email from his lawyer today outlining the fact that the lease restricts the use of the garden to be used for any purpose other than garden land. Would it be reasonable for him to withhold consent purely because of this clause in the lease?

Joshua :

I think that is a stretch. Garden can be used for building and the structure you are proposing to build is ancillaryy to the use and enjoyment of the flat. It does not say you may only use the land for recretional or amenity purposes nor does it say you must use the garden land as a garden. If the matter cannot be agreed you may wish to consider an application to the county court could be considered for a ruling on the interpretation.

Joshua :

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=424

Joshua :

Initially however I think your argument back to the solicitor is that it does not say you must only use the land as a garden but rather as garden land. It is quite common for people to extend onto their garden land and therefore your proposal is not in conflict with the provision.

Joshua :

Is there anything above I can clarify for you?

Customer:

I don't think so....Will email his lawyer tomorrow with the content you've suggested. Roughly how much can I expect him to charge for "costs?".

Joshua :

A good landlord should not be seeking more than a couple of hundred pounds for costs for preparing a licence but it can vary dependent on circumstances - e.g. the landlord may reasonably insist on a surveyors report if you are carrying out structural work. You can call attention to the lawyer that you will not expect the costs to be unreasonable as you do not want to have to consider applying to the Leasehold Tribunal for a determination as to the reasonableness of costs.

Joshua :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/leasehold-08-eng.doc

Joshua :

Can I help you with anything else?

Customer:

That's great thanks. XXXXX have to finish this conversation now or can I ask further questions tomorrow?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. This will also store the thread in your account and you are very welcome to return to it if you have any follow up questions tomorrow or later on.

Customer:

~Thanks

Joshua :

Best wishes

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24551
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua
Joshua
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LL.B (Hons), Higher Prof. Dip. Law & Practice