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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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there are seven flats in a converted property, The cellar,

Resolved Question:

there are seven flats in a converted property, The cellar, is physically sectioned. and at some time since mid 1970's each of the 6 sections have been allocated to 6 of the flats. All 6 flats have had a change of owner since 2006 and all were sold with the understanding of which section belonged to each flat. The lease however only mentions the cellar regarding access to the electricity and gas meters. There is no mention of the cellar area being allocated to the individual flats.
Because there is a common understanding of a long term agreement, can this be challenged and if it can, is the only other option to revert to the lease i.e. it is all just common area?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

can each of the sections only be accessed physically by each respective flat or is there some form of external access aside from through each flat please?

Customer:

there is a central corridor to the cellar which is a common area there are six side bays, one allocated to each flat. there is only one door to the cellar from inside the property and no external access

Joshua :

Thanks. Do the leaseholders also own the freehold for the building or is the freehold owned by a third party?

Customer:

the owners of the flats own the freehold via a limited company of which they are equal shareholders

Joshua :

Thanks. Is it all their wishes to regularise the position or not please? Could you breifly outline the circumstances if this is not the case?

Customer:

it was raised as an issue at the AGM 'for clarification' but since then, a dispute between two of the flat owners. One has installed a tumble dryer in their area of the cellar the second owner believes this to be a fire risk and wants the use of electrical equipment in the cellar stopped. If the individual areas of the cellar are 'owned by the flat owners then we cannot restrict what they do in their own property. This could well raise a challenge to the ownership of the individual areas.

Joshua :

thank you. From what you say, the starting point is that each seller area is not specifically demised to each respective flats under the terms of the leases to the flats. This being the case, subject as follows, each flat owner does not own any part of the cellar and it would be necessary to amend the terms of the individual leases by way of a deed of variation or a surrender and re-grant of each lease in order to include the cellar area as part of each flats demise

Customer:

OK, Thank you

Joshua :

unless and until this is done,the cellar area would constitute property belonging to the freehold. given that the freehold is owned by the leaseholders by virtue of a limited company vehicle, it is within the power of a majority of the leaseholders to authorise amendments to the individual leases to include the respective areas of the cellar in order to add these to the demise in each lease

Joshua :

it is perfectly possible to continue as things stand and continue to use the areas of the cellar without formally adding them to the individual leases. if this is done, event such use would be subject to any reasonable regulations made by the freehold company which presumably would be decided by majority vote unless the majority required has been changed by the articles of association for the company

Joshua :

there is however a caveat to the above which is that if any individual leaseholder can demonstrate that they have had exclusive possession of the cellar area attributable to their flat for a period of 10 or 12 years, it is potentially possible for that leaseholder to claim ownership of that cellar area however, since 2003, possession claims of this nature have been increasingly difficult owing to a change of the law and even were this to be possible for any individual leaseholder, it is likely that a resolution through the freehold company may be more straightforward than attempting a unilateral claim of this nature

Joshua :

is there anything above I can clarify for you?

Customer:

Can the change to the leases be done by a meeting of the owners and a written minute or would it be necessary to get a solicitor involved to document it properly

Joshua :

in order to amend the leases to include the additional areas, first of all a meeting would need to be called and vote held to agree a resolution to do this. Once a resolution has been achieved, the company would need to instruct a solicitor to prepare documentation to amend the leases. The simplest way to achieve this is likely to be a deed of variation. If the leaseholders have mortgage lenders, the lenders permission will need to be sought in respect of each individual lease however permission should be readily forthcoming as the addition of the cellar enhances rather than detracts from the lenders individual securities

Joshua :

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

Customer:

Thank you very much, you have clarified the position for me

Customer:

goodbye

Joshua :

A pleasure.

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. If there is anything else I can help with please reply back to me though.

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