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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 70696
Experience:  Over 5 years in practice.
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Hello, I am a leaseholder of a first floor flat in a two

Customer Question

Hello,

I am a leaseholder of a first floor flat in a two flat building. The freeholder of the building also is the leaseholder of the ground floor flat. The freeholder has put in planning permission to add a side elevation to her flat on the ground floor. There is a proposed pitched roof that is shown on the plans to run along the external side wall to the rear of the building. On the internal side of this external wall on the first floor is my kitchen and downstairs toilet. The plan shows that the proposed pitched roof will run at height one metre above the internal floor line of my kitchen and toilet. Can the freeholder do this?

Also, I have a balcony that leads from my kitchen on the first floor on the rear elevation of the building. On my lease the plans attached clearly show the whole of the balcony demised to my flat. The balcony has railings on three sides. The freeholder's plans show that she proposes to either remove the right hand side railings of my balcony and replace them with a one metre high retaining wall (roughly to the top of the existing balcony railings) that the proposed
pitched roof will abut, or build the retaining wall against the right hand railings of my balcony. Effectively this will enclose the balcony on the right hand side with a solid one metre high wall. Can she do this?

Finally, this retaining wall seems to encroach onto the floor area of the balcony by about 200mm. Can she do this?

Any other information you can add would be very useful. Thank you.
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Has planning permission been granted please?
Customer: replied 3 years ago.

No, it's in the process of going through. I have spoken to the council planners and they say this is not a planning issue it is a legal one. My lease has standard wording regarding internal wall and external wall rights, and there are not specifics in the lease to deal with this issues. I need to find out what the common laws are for freeholders and leaseholders in this situation.

Expert:  Remus2004 replied 3 years ago.
Thanks.

The first thing to tell you is that she cannot encroach onto your floor area by even 20 mm. She is going to need to amend the plans.

She is also not allowed to remove your railings .

If she builds a wall immediately adjacent to your balcony which does nothing except block your view then that would not offend necessarily. There is actually no right in law to a view. The right to light is different but the right to light only applies once the light is reduced by 50% or more. That is unlikely to apply here.

You can object to the planning permission on the basis that this extension will have an adverse effect upon your property and I think that is the way I would go with this.

In relation to the roof just below your kitchen window, it appears that you will then be looking out onto a roof rather than looking out onto the ground. There is actually nothing in itself that you can do about that provided she does not encroach upon anything in your demise, but I also think that gives you grounds for objection to the application for planning permission also on the grounds of the adverse effect upon your property.

She does need the freeholder's consent to do all this work however if she is the freeholder, that does not become an issue.

As both a freeholder and leaseholder she is under a duty not to cause nuisance and that is something else which needs to be considered in the whole scale of things, including, when the work is actually going on.

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.
Thank you. That clarifies some of the points raised. Need to know as a freeholder, does she have a right to build at a height on an external wall one meter above the internal floor line demised to my flat on that same wall? This point is equally true of the balcony wall height as this would be one meter higher than the highest point in her flat i.e. She is effectively creating party walls that currently don't exist. Can she do this?


Expert:  Remus2004 replied 3 years ago.
There is a legal doctrine which says that anyone who owns the ground owns the air above it, and the ground below it, and therefore, subject to planning permission, and any covenants against the property, she is able to build upwards on any land that she owns.

People who build extensions in semidetached or detached houses right on the boundary, actually create party walls all the time, provided of course that they serve the relevant Party Wall act notices

Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you. She has not served notice regarding party walls that will be created?
Expert:  Remus2004 replied 3 years ago.
She does not have to do is serve notice until such time as she gets planning permission or she is about to start work.

Here is a link to the Party Wall act explanatory booklet.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/207310/Party_Wall_etc._Act_1996_-_Explanatory_Booklet.pdf

Unfortunately, the Act gives no penalties for non-compliance, although if she does not serve notice, you can get an injunction and adverse costs against her, to make her stop work pending an agreement.

All it does, however, is delay matters.

You cannot delay matters because you do not like what she is doing. You can only delay matters because she has not served notice.

You also cannot agree to what she is doing because you do not like it. You can only fail to agree because it is likely to have an adverse structural effect on your property.

The booklet explains the situation in detail
Customer: replied 3 years ago.
Thank you. You have been very helpful.
Expert:  Remus2004 replied 3 years ago.
No problem and all the best.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’.
Customer: replied 3 years ago.

Thank you.

Expert:  Remus2004 replied 3 years ago.
Thanks.