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Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 25950
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I own 1 of 12 properties on a private freehold estate. The

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I own 1 of 12 properties on a private freehold estate. The deeds state we are to own the shared amenity land 12 months after the last property has been sold. This was 3 years ago and finally we are due to transfer to a management company in August, whereby we will have to pay a service charge.
The owner of one property has successfully applied to cut away a piece of the shared landscaping and turn it into a a parking spot. The majority of the residents object 8 out of 11 and we are prepared to fight to block the works on what is our land.

Joshua :

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

Joshua :

Who has he applied to please?

Hello. I understand you have experienced difficulties with the chat window. I'm very sorry for any inconvenience you have experienced. I have switched to a question and answer format which should be more reliable I trust you are able to read this post.

I'm grateful for your question. Would you be able to confirm for me who the neighbour has applied to precisely? for example, has applied to the local authority for planning permission or to somebody else
Customer: replied 4 years ago.

He has gained approval from the local planning department at the council

Thanks. Finally from what you say there is a provision in your transfer (deeds) that the amenity land is transferred to a management company. Is this to be a limited company do you know or a trust?
Customer: replied 4 years ago.

This is a limited company which we the residents have sourced and appointed

thank you. Planning permission does not grant a legal right to carry out development nor does it imply any legal ownership interest in the land on which permission is obtained. Anybody can apply for planning permission in respect of anybody else's land but just because permission is granted does not mean that that person has any legal right to carry out the development if they do not own the land concerned. For example, I could apply for planning permission to use in your garden however if permission is granted, there is no way I could actually build anything without your consent.

in this case, from what you say, the land in question in which they wish to construct parking and exercise rights of parking belongs to the amenity management company and accordingly they will need permission from the management company for the right to park their or alternatively will require a legal transfer of the land from the management company to themselves. From what you say, management company will not grant such permission and therefore their proposal is stopped dead and the fact that they have planning permission is neither here nor there.

Management company will no doubt wish to make it clear that the land in question belongs to them and permission will not be granted for development to be carried out nor for the right for them to park there

Is there anything above I can clarify for you?
Customer: replied 4 years ago.

Does it matter that they applied before the land was officially transferred over to the homeowners or is it who owns the land when the work is to be done/

No it doesn't because the land does not belong to them even still. It presumably belonged to the developer who is under a contractual duty to transfer it to the management company. Either way it is not theirs so they have no right to build o or exercise right over the land beyond those amenity rights granted under the transfer.

Does the above answer all your questions or is there anything I can clarify or help with any further?
Customer: replied 4 years ago.

The homeowner who has applied for the permission is a relative of the original developer and has applied under the developers name , however he purchased the house from the developer to rent it out, we believed that this makes his ownership no different to ours as the property was purchased from them the same as we all did. Have they been very clever and used a possible loophole or does it still not matter?

Providing the transfers are clear that the land in question is to be transferred to the amenity land management company there is no loophole or way around for the owner to exploit. None of the above would make any difference to the above. it remains that they must have title or failing which a legal easement or right to develop and exercise parking rights or any other rights over the land. I

If the developer has entered into a commitment to transfer the land to the management company he cannot derogate from that commitment unilaterally nor can the owner somehow exploit their relationship with him to seek a loophole. The contractual rights on the above basis are absolute and stand irrespective of the owners relationship or the name the application was made in.

Is there anything else I can help you with?
Customer: replied 4 years ago.

Thanks just to summarize then, as long as our title deeds state that we are to own and maintain the piece of land in question, we can via our appointed management company instruct the applicant not to enter upon that land to carry out the work? There is majority support on this, 2 residents don't mind, is that enough to stop proceedings and if it is is there a formally named notice to serve or just a letter informing them not to proceed?

That is correct. I presume your solicitors will have confirmed they were satisfied with the transfer deed provisions as will all the other owners and it is unlikely mistake would have escaped so many solicitors and the provisions are fairy standard for communal freehold amenity land so there is nothing particularly unusual so as to suspect there may be a problem.

The voting will be governed by the memorandum and articles of association for the company but it would be surprising if these were other than simple majority voting. Do check them but in the assumption this is correct then a majority decision would carry.

On this basis the company when it owns the land can instruct the owner not to proceed and refuse access to any contractor and if necessary obtain a court order restraining trespass in respect of the land and costs though one would hope this would not be necessary.

I hope the above is of assistance. 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. If there is anything else I can help with though please reply back to me though.
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