How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask propertylawyer Your Own Question
propertylawyer
propertylawyer,
Category: UK Property Law
Satisfied Customers: 233
Experience:  Solicitor at Bonnetts
94563951
Type Your UK Property Law Question Here...
propertylawyer is online now
A new question is answered every 9 seconds

Any remedies if freeholder denies permission for alteration?

Customer Question

Any remedies if freeholder denies permission for alteration?We recently purchased a flat in a mansion block in London, and we are trying to make alterations to the layout and the fixtures. The lease requires permission from both the management company and the freeholder. We are working through the permission with the management company (they are incredibly particular, the process has taken 3 months already and ongoing), but the solicitors for the freeholder has just responded that "my client who is not prepared to grant consent to the proposed alterations. The lease, as we discussed yesterday, contains an unqualified prohibition on alterations by the tenant." and has not provided a reason beyond that.Questions:
1. Do we have any remedies if the lease does not have any requirements for "reasonableness" of refusal? What is the likelihood of success?
2. Does an absolute clause like the one below really mean the freeholder does not have to give a reason or can refuse any proposal without cause?
3. Does the "Landlord and Tenant Act 1927" apply to residential properties too (it seems like it's for commercial properties?), or is there anything similar that applies to residential properties? I understand in this Act, it's stated that the test of reasonableness applies, whether the lease mentions it or not.
4. Under the clause below, would we be able to do (a) cosmetic changes (in particular changes to the kitchen and bathroom fits and fixtures), and (b) also extend a bathroom (false wall, no structural changes) to add a shower to it - without freeholder permission? Or is (b) considered "alteration in the internal plan arrangement"?Exact wording of the lease:
The exact wording of the lease is "Not make or permit or suffer to be made any alteration in the external or internal plan arrangement or construction or in the height roof principal or load bearing walls timbers or girders elevation or architectural appearance of the demised premises or the Group or any part thereof."
Submitted: 1 month ago.
Category: UK Property Law
Expert:  Nick H replied 1 month ago.

Hello - If the lease was entered into as a consumer. i.e This is not a business transaction, but rather you buying a property for yourself then

you will be able to claim under the Unfair Terms in Consumer Contracts Regulations 1999. The following is a link to the Office of Fair Trading

concerning this point https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284440/oft356.pdf

Furthermore the OFT has an obligation to progress your matter for you. It would wise to contact them and also then relay what is happening

back to the landlord - which may well change their mind bat refusing to negotiate. Can I help you further?

Customer: replied 1 month ago.
Thank you. Yes it's a purchase as a consumer. Which clause exactly in the link sent applies to our situation?Would you please also address the other specific questions raised in the text using the question numbers?
Expert:  Nick H replied 1 month ago.

Hello again

In terms pf what I sent to you by link it would be far better to contact the OFT and tell them the story

as they will then enforce the matter for you.

Q 1. Yes they must satisfy that their clauses are 'reasonable'. On the facts provided they do not appear to be

being reasonable.

2. The clause purports to do this but again can be struck out if not 'reasonable'.

3. The act mentioned before is relevant here.

4. The clause mentions the 'internal pan arrangement' a stud wall would change that plan presumably.

As I mentioned before I think that the best course of action would be to explain that the clauses are not 'resonable' and therefore invalid. Then explain that unless agreement can be made that you will inform the OFT and will seek reparatios for loss incurred.

Customer: replied 1 month ago.
Thanks. Can you please respond to the part of question 1 that asks whether the freeholder solicitor has an *obligation to provide a reason for refusal*, and what the likelihood of success would be?More importantly, can you please provide any legal references that says an absolute / unqualified prohibition is subject to a test of reasonableness? The freeholder's solicitor is implying that the freeholder can simply refuse as you see above. I'm sure this is a very common case in property law (from what I read on the Web absolute prohibitions are common in old leases), so I trust there is a generally accepted answer here, trying to understand the likelihood of success if we decide to fight this decision, and what factors would impact that.Thank you
Expert:  Nick H replied 1 month ago.

I know of no obligation upon the freeholder's solicitor to provide a reason for refusal.

However it is further evidence that the clause is unreasonable.

The Unfair Terms in Consumer Contracts Regulations 1999 - specifically provides for the

clauses in the lease to be reasonable and such a clause that prohibits almost everything is

very likely to be deemed unfair. In terms of success should you bring this matter to court.

On the facts you have a strong case. Litigation can be extremely expensive and firms often ask

for a large down payment before progressing at all. This is why the OFT route could be easier and

cost free. You could always suggest to their solicitor that the lease clauses are void as they are

unreasonable and then inform them that you are going to press ahead with the works. They will then

need to bring an injunction - which under the circumstances they ought not to do. I trust that this has been of help to you.

Expert:  Nick H replied 1 month ago.

Hello - again.

I hope that the answers I have given have clarified matters for you. You are quite correct that the Landlord and Tenant Act 1927

concerns Business Premises only.

If you could now give me a 5 star rating that would ensure I get paid. Many thanks. Should you require further assistance please do not

hesitate to ask.

Customer: replied 1 month ago.
Thank you for the responses. I read the doc sent and have been searching the Web, but apologies but I am not able to confirm this is the right answer here, as I cannot seem to find any mention of this route being pursued against a property lease. Which I find very surprising, because again this seems to be a common issue that comes up in Web searches.1. Please correct me if I'm wrong, but the link provide from OFT clearly deals with rental agreements, not leases. It says "The guidance deals primarily with potential unfairness in assured and assured shorthold tenancy agreements" and all the examples etc relate to the rental market.
2. I find plenty of sites to the contrary to the answer you provided, saying if there is an absolute term in the lease, "the landlord can refuse or impose unreasonable conditions". Or quoting from another site: "The lease may contain a total prohibition against alterations.[...] If this type of clause appears in the lease your landlord would be entitled to withhold consent to any alterations without giving any reason."
3. It's very important to us that we are getting the right answer here, so would appreciate your help verifying it and providing evidence. Can you please provide any links to any documents clearly states test of reasonableness applies, and OTF route can be used for fighting against an absolute term on alteration in a property lease document?Thank you
Expert:  Nick H replied 1 month ago.

Hello - could you please rate me 5 star please.

Expert:  Nick H replied 1 month ago.

I am happy to respond as necessary after that

Customer: replied 1 month ago.
Sorry, I would love to rate you 5, but right now the answer does not satisfy the question and I'm considering re-posting it. If I rated the service now, the rate would be between 2-3. Happy to rate a 5 if you can provide relevant references that applies in this case -- the communication has been excellent, but the above answer does not seem to be relevant in our case, essentially giving us the "wrong" answer. Please correct me if I'm misunderstanding something.
Customer: replied 1 month ago.
Please let me know what you prefer -- will wait to see if you could please address the concerns I raised and give specific reference law, or otherwise I will have to rate a 2 so I can re-post the question and get the right answer.
Expert:  propertylawyer replied 1 month ago.

Hi

I will see if I can assist as the other experts has opted out.

Are you able to upload an extract of the lease so I can read the clause.

Once I see the wording I can assess.

Also, please clarify what alterations you are proposing to carry out.

Thanks

Customer: replied 1 month ago.
Thank you. The exact wording of the clause is in the first post, I have copied it below. Alteration we are proposing is to (a) move a structural wall to enlarge a room, and (b) extend a bathroom (false wall, no structural changes) to add a shower to it.The exact wording of the lease is "Not make or permit or suffer to be made any alteration in the external or internal plan arrangement or construction or in the height roof principal or load bearing walls timbers or girders elevation or architectural appearance of the demised premises or the Group or any part thereof."Questions that in my mind remain open:
1. Do we have any remedies if the lease does not have any requirements for "reasonableness" of refusal (see below)? What is the likelihood of success?
2. Does an absolute clause like the one below really mean the freeholder does not have to give a reason or can refuse any proposal without cause?
4. Under the clause below, would we be able to do (b) extend a bathroom (false wall, no structural changes) to add a shower to it - without freeholder permission? Or is (b) considered "alteration in the internal plan arrangement"?More context (same as the original question):
We recently purchased a flat in a mansion block in London, and we are trying to make alterations to the layout and the fixtures. The lease requires permission from both the management company and the freeholder. We are working through the permission with the management company (they are incredibly particular, the process has taken 3 months already and ongoing), but the solicitors for the freeholder has just responded that "my client who is not prepared to grant consent to the proposed alterations. The lease [...] contains an unqualified prohibition on alterations by the tenant." and has not provided a reason beyond that.
Expert:  propertylawyer replied 1 month ago.

Many thanks, ***** ***** the above, Unfair contract terms act (which I do not think applies) have you been given any advice? Do you have a solicitor acting for you?

Customer: replied 1 month ago.
No advice received so far, we only had a solicitor at the time of the purchase... Reading online, this absolute term on alteration seems common in old leases. So I am trying to understand if this is actually possible to fight, what the likelihood of success would be, and what the implications would be, before we make a call whether we take the legal route here.
Expert:  propertylawyer replied 1 month ago.

Thanks. My book on this is in the office. I will check lunchtime and come back to you.

Customer: replied 1 month ago.
Okay, appreciate it. Thank you very much.
Customer: replied 1 month ago.
Hi -- any updates on this by any chance? Thank you!

Related UK Property Law Questions