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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We live in a lease governed purpose block of flats with

Customer Question

We live in a lease governed purpose block of flats with balance of 999 year lease. Our management company is exploring resurfacing all our external hard surfaces with normal tarmac. Shareholders will probably have to pay a levy for the work. No issue with this overall, except there are ongoing site conflicts about some turning heads spaces needed to be kept clear for garage access for some garages. These turning heads are on original lease site plans. Currently the heads are clearly marked with edge sunk curbing. We are insisting the resurfacing must preserve the shape, size and visible contours of the heads but the management company are intending to proceed with the works without any specific definitions. How can we ensure we prevent commencement of the works until this issue is resolved or an agreeable physical definition of the heads is produced? Can we get a court order preventing work until resolution? Thanks David [email protected]

Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

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

Joshua :

Can you clarify please that the leaseholders have a management company which is responsible for the maintenance and managament of the development and the leaseholder are each in turn shareholders of the company?

Joshua :

If this is the case is it the directors that have proposed to proceed in this way? What do the majority of shareholders feel?

Joshua :

Do you have rights of way over the turning areas you refer to in your respective leases?

Customer:

Yes, the leaseholders are all shareholders in the management company. The directors of the mc and the managing agents are proposing the re surfacing works. Do not know the rest of the shareholders views. They are not impacted as we would be if the definition of the turning heads was lost since only we in the end garages need the turning head space to access our garages. All surfaces on the whole site are defined as common paths and no shareholder has any rights to park or leave motor cars on any path except in their own garages. Believe all shareholders have common rights to travel over the turning heads. Parking issues are common problems and historically some shareholders acting independently and without general leaseholder approval or planning permission, created two parking spaces from lawn areas adjacent to the turning heads. These "unofficial" parking spaces are clearly defined as separate to the turning heads by sunk curbing and a different tarmac colour/ surface. Once resurfaced, all definition of the turning heads will be lost and the whole rear area becomes an undefined parking space leaving us with garage access and ingress issues without the turning head spaces. We MUST have the turning head space protected and defined clearly but the management co and probably some other shareholders have an interest in blurring the issue to promote "controversial" parking. The MC are not responsive to our requirements for turning head definition and we fear they will let the contract and do the resurface without any agreement to preserve the turning heads and the rules that go with them. What steps are recommended to prevent the work commencing until we have full agreement on site operations and behaviour under the lease?

Joshua :

My apologies for the delay in reverting to you.

Joshua :

Thanks. There are two bases on which to proceed - either via your rights as shareholder in the company by way of a vote for which you would need to achieve a majority or as a leaseholder. On the basis you advise that it is not likely you will be able to achieve a majority because of lack of interest in the matter I will with your permission focus on rights as a leaseholder.

Joshua :

If you have a right in your lease to travel over the turning heads then the management company cannot derrogate from that right.

Joshua :

This means that the managagement company cannot reduce or modify the extent of that right of way or make alterations that make it more difficult to exercise your rights over the full extent of that area, without the permission of all leaseholders that have the right to travel over the same.

Joshua :

If you have evidence or believe that the management company intends to modify the extent of your right of way so as to reduce the same or make it harder to exercise your rights you may consider applying for an injunction against the landlord and/or management company. There is authority on this matter in the case of Smith v Garrard [2004] which established that an interference must be a substantial interference in order to be an actionable interference - i.e a trivial interference cannot be actioned against bu rather the interference must substantively make it harder to exercise your rights.

Joshua :

They will need to submit form N16A to your local county court to apply for an injunction if this becomes necessary

Joshua :

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

Joshua :

Is there anything above I can clarify for you?

Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

Thanks for your more detailed reply. This is useful. My deeper concern is that the "unofficial" parking spaces created adjacent to the formal turning heads, if tarmacked without any edge definition of the heads, will completely obliterate and obfuscate any definition of parking space acceptability and non acceptability, as well as my end garage access. Silence from the board in the whole matter makes me consider the move is a cynical attempt to widen unofficial parking which I feel breaches the intent and spirit of the lease/ ground plan. To this end I feel it may be necessary to get a stop order on the board before work commences to force a resolution of the issue before "possession becomes 9/10ths of the law"


Thanks XXXXX

Expert:  Joshua replied 3 years ago.
  1. Is there a seperate freeholder please?
  2. What is/was the land used for prior to the unofficial parking space?
  3. Does the unofficial parking impinge on your rights under the lease?
Customer: replied 3 years ago.

Joshua, Many thanks for further inputs


Yes there is a separate freeholder and holder of the head lease between magt co and themselves. It is Montbard Properties - believe they are either Crown Estates or Westminster Group


 


The land use before unofficial parking created was landscaped lawn area. This was shown on orginal site plans and accompanies each underlease for each shareholder


 


The unofficial parking per se does not impact our rights under the lease. However, "creep" of parked cars outside the parking into the turning heads does have impacts on access to my end garage. There is always pressure for non garaged car parking space increases but no shareholder is willing to give up any landscaped or garden area to provide it. They just want to expand into the defined turning heads


 


David Barker

Expert:  Joshua replied 3 years ago.
Thanks. Do you have rights to use the landscaped lawn areas for recreation or amenity land in your lease please?
Customer: replied 3 years ago.

yes, all shareholders have the rights to enjoy all lawn and garden areas on the site. Very few exercise these rights but they are clearly spelled out in the underlease


David Barker

Expert:  Joshua replied 3 years ago.
Thanks. If you can personally show that you have a right to enjoy or use the areas which are beeing given over to parking this constitutes a derrogation of grant of rights to you by the freeholder and you can seek an order to restore that area for your benefit. Any other leaseholder which enjoys similar rights which is presumably all of you can make a similar application but it only needs one of you to do so.

You can consider contacting the freeholder claiming a derrogation of his grant of rights in respect (albeit it is not specifcailly he that is responsible) and copy in the managing company. If necessary you can sonsider the issue an application for an order restroing the area to amenity land using this form:

http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n208-eng.pdf
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Property Law Specialists are ready to help you

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