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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 25424
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We all have a 60 year lease on 5 flats in a house. The freeholder

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We all have a 60 year lease on 5 flats in a house.
The freeholder lives in one of the flats.
The freeholder sent each flat an offer for the option to buy part of the common parts. No one could afford the cost, so the freeholder said he would buy it.
This was a cupboard and part of the entrance hall (not part of a fire escape to the front door). Now he wants to build an extended cupboard in the space he “bought”

My question: Is the freeholder just allowed to but any parts of the common parts at all. Are there ever any circumstances where the freeholder can buy some of the common parts by force?

Joshua :

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

Joshua :

are you familiar with the terms of your lease please? If so, do you know if the lease gives you any rights in respect of use of that cupboard?

Customer:

No, there are no rights for us. The lease says it is common parts outside our flat's demise. It also says the freeholder

Customer:

has the right to remodel

Customer:

I'm worried he will build the cupboard right to the edge of our entrance door, and above it. Thus boxing us in, but still allowing exit from our flat door. A bit claustraphobic!

Joshua :

thank you. For the avoidance of any doubt, from what you say, your lease refers to the area comprising a covered as " common parts". is that correct please?

Customer:

Sorry I was getting the kids.

Customer:

Yes that is right

Customer:

It is not only the cupboard, but a small area of floor outside the cupboard

Customer:

one sq metre of floor

Joshua :

Thanks. In the lease there should be a section that sets out rights. It will often say something along the lines of a right to use the common parts or a right to pass over the common parts for the purpose of access or egress from the Property. Can you see any such wording?

Customer:

I will check

Joshua :

Thank you...

Customer:

Included rights:


 


“to use on foot only the common entrance hall staircases passages and lift (if any) giving access to the demised property”

Joshua :

Thanks. Presumably the cupboard does not fall under "the hall" does it?

Customer:

No I can send a plan if you have file upload

Joshua :

You don't have the lease you could upload I suppose?

Joshua :

Its not crucial if you don't..?

Customer:

I only have a printed version. I can scan it and send it on Monday?

Joshua :

Thanks. DOn't worry if it is problematic.

Joshua :

the position with regards XXXXX XXXXX landlord is that he is not entitled to do anything that derogates from your rights under the lease.

Joshua :

from what you say above, you have rights to pass over the common passages including the hall and staircases etc and therefore he cannot encroach onto the space so as to either prevent you from exercising this right or make exercising the right more difficult. This is in derogation from his grant of rights to you as a tenant and is therefore unlawful

Joshua :

the wording you have produced above does not specifically referred to the cupboard and therefore unless there is further provision in the least that provides a right to use the cupboard, I cannot see that the landlord cannot develop the cupboard itself but it is worth reading the section in the lease that details your various rights under the same to ensure that there is no further right in respect of the cupboard itself. If there is, the same principle applies to this as well and the landlord cannot develop the same.

Customer:

But do I have a right to pass over the small bit (1 metre) of common hall to get to the cupboard, even if the cupboard is not demised to anybody. That 1 metre is not a hallway to anywhere except the cupbord, but it is common parts. He also wants to build a cupboard over my doorway, so I don't know if airspace is covered as common parts.

Joshua :

precisely. He is not able to develop or encroach upon the hallway because from what you have posted above, you and indeed other tenants with similar leases have rights to pass over that area. It does not matter whether you choose to exercise those rights regularly or indeed ever. You have the right to exercise it if you want and he cannot derogate from this right.

Joshua :

if he is intending to develop such areas, you may seek an injunction against the landlord to prevent him from doing so on the basis of your rights under the lease

Joshua :

in order to do this, you will need to complete form N16A and set out the injunction you are seeking together with a copy of your lease and any information you have in relation to the landlord's plans for building

Customer:

OK. Final point as above. Does airspace count, as he says building a cupboard above my doorway doesnt affect my passing along the corridor

Joshua :

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=402

Joshua :

Anything that encroaches into the passage from floor to ceiling would be an encroachment into your right of way over the same. The test that is applied by the courts is whether an encroachment makes it more difficult to exercise a right of way. An encroachment does not have to prevent access to be an encroachment but merely to make access more difficult. if his proposals will make access more difficult than based on the above, this would be a derogation and therefore unlawful

Joshua :

Is there anything above I can clarify or assist you with any further?

Customer:

Excellent response. Will give you 10 out of 10! Have a nice weekend

Joshua :

many thanks. And to you.

Joshua and other UK Property Law Specialists are ready to help you
Unfortunately I cannot read the lease pages as the resolution is too low. However if the proposed works is taking place in any part that is defined as common parts in the lease or over which you have rights of way which are being hampered by the proposals then the landlord may not pursue the same as they amount to a derogation of grant of rights.
Customer: replied 3 years ago.

Great, so if he starts work on common parts to take them away from other leaseholders, I can get an injunction?


 


Thanks


 


Denis

Quite so if he carries out works that are intended to reduce the size of or substantively interfere with your use of the common parts then this is a derogation on the landlords part and an application for an injunction can be considered.

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