How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25430
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Property Law Question Here...
Joshua is online now

I am the owner occupier of a leashold flat in a four story

Resolved Question:

I am the owner occupier of a leashold flat in a four story building consisting of three flats. I. We own the ground floor, basement and garden, another lady owns the first floor flat, and a third lady owns the top floor flat.
The lady who owns the top floor flat wishes to complete a loft conversion which will be a very substantial piece of work and involve the erection of a whole new style roof. In order to achieve this, her and her workmen would require regular and direct access through our ground floor flat and would require erecting scaffolding in our very small rear garden for a period of several weeks, as well as scaffolding at the front elevation.
I find our lease somewhat contradictory as in one place is states that lessees can have access to other flats for maintenance, alterations etc. with reasonable notice, but in another part it directly states that no lessee can cause any other any disturbance or nuisance. It is obvious to any sane person that allowing workmen trampling through our personal flat and building scaffolding in our private garden is a huge nuisance and disturbance to us.
Therefore, it would be my intepretation that a lessee can only have access to another flat for repairs or alterations PROVIDED the lessee of the flat(s) involve consent that it does not cause them undue nuisance or disturbance (or perhaps if any urgent maintenance was required).
Would this be an appropriate legal intepretation?
I am aware there are also Party Wall Act implications relating to access which I am consulting a Party Wall Surveyor.
Kind regards
James
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.
Joshua :

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

Joshua :

May I ask who owns the freehold for the building please. Is it jointly owned between the three of you or is it owned by a third party?

Customer:

It is owned by a third party.I am told she has written permission for the works from the freeholder but have not seen this in writing and the freeholder was very vague when I spoke to him. I have also written to him seperately regarding our concerns and asking him, if it is indeed true he has given his consent, that he formally withdraws it in writing,

Joshua :

Thank you. The starting point as you say is that the flat owner will need to have consent from the freeholder however from what you say she has this though I note you are pursuing the matter with the freeholder in this respect.

Customer:

In our favour the freeholder was keen to be equitable to all lessees. As both of the other flat holders are horrified by the proposals, the general lack of professionalism and the endless deception and misinformation,I have made it very clear that I do not consider this project to be equitable as we bear all the risk and inconvenience whilst the owner of the top floor flat bears all the reward. I am awaiting a formal reply from the freeholder.

Joshua :

Notwithstanding the above, the flat owner will need to comply with the party wall act which requires her to serve notices on all other flat owners in the property and seek your consent. If consent is not forthcoming from both of you a party wall surveyor will need to be appointed to act for all three of you or if you refuse individual survyors must be appointed to negotiate a party wall award.

Customer:

Yes I know all that and am in youch with a party wall surveyor. However, we have been told on 5 seperate occassions different things about whether a party wall agreement is indeed needed. I am consiulting the relevant experts on that.I am very keen to know though if my legal intepretation regarding access rights that are reasonable is an appropriate reading of the lease when considered with the covenants

Customer:

relating to noise and disturbance

Customer:

It should also be noticed that the party wall agreement would actually need to include 7 other flats in total including the neighbours at either side.

Joshua :

ost residential leases contain provisions allowing access to other flats for the pusposes of maintenance and carrying out works. From what you say your leases also contain such provisions. Long term access of the nature you refer to will impact your right to quiet enjoyment and there is therefore the question of compensation being payable to you by the neighbour for your granting such access.

Customer:

What might be considered long term? She is talking about 6 weeks but I believe it will talke much longer.

Customer:

And what legal rights do we have to compensation and how is a reasonable sum determined?

Joshua :

If you refuse access the neigbour would have to go to court to seek a court order which they are likely to be able to obtain though you can ask the court to award a compensation payment to you based on the amount of inconvenience you are likely to experience. This issue can also be agreed and determined under a Apart Wall award which is likely to be a better forum given that a part wall award wil likely be required here anyway in the assumption you are not likely to readily agree to the work going forward without a part wall surveyor being involved.

Customer:

I also believe that allowing unfettered access for workmen etc. would invalidate our home and contents insurance. Does this provide us with any further protection?

Joshua :

Working with your surveyor you can assess the amount of day to access that is likely to be required, and the redcuction in amenity you will suffer during that period and quantify a payment on this basis. Frequently surveyors will quantify a figure based on a notional assessment of open market rent for your property and working out what amount and extent of your property you will lose enjoyment of for a given period but this is not the only way.

Customer:

I understand under the Party Wall Act they have the right to break down my front door if we refuse access which worries me greatly. I cannot understand how they can build scaffolding in our private garden without our consent or an agreed compensation.

Joshua :

Workmen will have to be fully insured and you can require sight of their insurance policy. Providing they are there should be no impact on your house insurance however assumng you are not required to leave your house open unattended which would be an issue.

Customer:

Can I just therefore check your interpretation of my initial question regarding what access would be considered reasonable. i.e.

Customer:

it would be my intepretation that a lessee can only have access to another flat for repairs or alterations PROVIDED the lessee of the flat(s) involve consent that it does not cause them undue nuisance or disturbance (or perhaps if any urgent maintenance was required). Would this be an appropriate legal intepretation?

Joshua :

The part wall act provides a right to build scaffolding on adjoining land to carry out works. However it is subject to making good damage and subject to discussions of compensation for loss of amenity as we have discussed above which you can in turn discuss with a part wall surveyor appointed to act for you (at the neighbours cost).

Customer:

There is also the question of the necessity of access though. She could, for example, use cantilever scaffolding and not require access to our garden at all, but she has not been willing to consider this (presumably because it will increase her costs)

Joshua :

Essentially yes. Normal conditions for access would include assessment based on the following:



(a) effecting entry at a reasonable time (or at any time in an emergency);




(b) giving reasonable notice to the person whose premises are being entered (except in the case of emergency when no notice is required);
(c) causing as little damage as possible to the premises being entered and promptly making good any damage caused to the reasonable satisfaction of the person whose premises are being entered; and
(d) complying with any reasonable requirements of the person whose premises are being entered in relation to the exercise of the right of entry.


Customer:

OK. I dont think I am quite getting what I was hoping as I want to be able to reply along the lines of:

Customer:

1. The lease states that you cannot cause us nuisance or disturbance

Joshua :

All such matters including use of scaffolding can and will be discussed under a party wall award. It is the purpose of the party wall award to put in place arrangements which are fair to all parties and the surveyor will also look at any other areas you may not have considered to ensure that any additional such matters are also covered

Customer:

2. These works would cause extensive nuisance and disturbance

Customer:

3. Therefore you cannot do this without our consent

Joshua :

I think at this moment the nieghbour has a long way to go before she can begin. She has not from what you say even serve part wall notices on you or yor other neighbour and must do so and obtain your consent before she begins. THerefore I believe you can reply on the basis that you will require her to serve a party wall notice and will not be able to consdier that matter any further until she does so. You can go on to remind her that she may not cause you any nuisance or disturbance - quoting the clause from the lease - and that you will have to consider the amount an extent of any such ipact on you in respect of the works

Joshua :

I do not think you need to go into more specifics than this at this stage. Complying with the party wall act will add many thousands to your neighbours costs and some people when they realise the full extent of these costs abandon works before they begin.

Joshua :

If she is undaunted then you and your neighbour can each insist on your own surveyor to increase the neighbours costs and at that stage you can discuss your various concerns and requirements which your surveyor will then negotiate upon under the Party Wall award.

Joshua :

Is there anything above I can clarify for you?

Joshua :

Has the above answered your questions satisfactorily or is there anything else I can help you with?

Customer:

She has served party wall notices

Customer:

Twice.

Customer:

Once, then saying it was not relevant and to ignore it

Customer:

And now secondly recently as she has changed her mind

Customer:

It is a shame I cannot just say the lease does not allow nuisance and disturbance so I do not consent and go away, but it sounds like this is not something I have the power to do

Joshua :

So as you will be aware she requires your consent at this stage. If you are not willing to give it - there is no reason you should - she will have to appoint either a joint PW surveyor if you agree or failing which individual surveyors to act for all of you.

There is nothing stopping you refusing to give consent for access however it is not something you can sustain under the Party Wall Act hence I do not think it is necessarily the best approach for you to take. Rather given that the PW Act provides a right of access subject to all of the above conditions, in my view it may be better to 1) insist on your own individual surveyor to increase her costs and 2) ensure that you seek payments for all reduction in amenity in your property for the period in question which can be done as part of negotation of the party wall award.

Customer:

Yes I will be appointing my PW surveyor as suggested. I was just hoping that the Party Wall Act could not override any leaxse conditions, but it sounds like it possibly can?

Joshua :

At this point, you may wish to consider revertig to her that you are not willing to grant consent for the works, and that going forward you will need to carefully consider any impact the works will have on the reduction of amenity and damage to your property for the period.

Joshua :

I also suspect you are right that 6 weeks is optimistic if the work involves a rebuild of the roof. There are some companies that specialise exclusively in loft conversions that can achieve work in this time, but general builders would usually take 8-10 weeks or more for a mansard construction or hip to gable conversion. In any event your surveyor will be able to advise on this and factor in provisions for any overun of the works.

Customer:

I have more or less done that. OK, unfortunately it does not sound like the lease provides me with as much protection as I hoped, even though I cant see how any sane person would not consider such access to be nuisance and disturbance. Thanks for your advice anyway.

Joshua :

PW Act does trump any limitations on access unfortunately but not without conditions which we have discussed above.

Customer:

Useful to know and very disappointing, thanks.

Joshua :

You can use your right to a surveyor etc to increase her costs but beyond that you will need to focus on compensation for loss of amenity if she is not put off.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

OK many thanks. I will be doing all I can to increase her costs. As there are 8 flats affected the party wall agreements alone will cost her upwards of £8k. Thanks for the advice.

Joshua :

That can be very expensive often prohibitively so.

Customer:

Good

Joshua :

If you can suggest to your neighbours that each of you require your own surveyor, that may be enough to make the works prohibitively expensive

Joshua :

Works on flats with multiple leaseholders can be prohibitively expensive because of the party wall acts provision that each party may inisit on their own surveyor and it can be a nightmare for the individual seeking to carry out the works

Customer:

I had this discussion with a surveyor who said he charges per flat even if they all use him, so the cost would be approx. £1k per flat and therefore £8k in total.

Joshua :

Each surveyor is likely to charge at least £500 + VAT and this would be optimistic

Customer:

Problem is this is a London property and would likely add £100k+ to the value of the property so may be a drop in the wayer

Joshua :

Don't forget the landlord will also charge her a percentage of the increase (assuming he has any sense) of her property for granting consent so it can all add up.

Joshua :

I hope that above has been of some use if not exactly the news you were hoping for.

Joshua :

Please let me know if I can assist with anything further

Customer:

I will suggest that to the freeholder thanks.

Customer:

Thanks again for your advice.

Joshua :

Best wishes

Joshua and other Property Law Specialists are ready to help you

Related Property Law Questions