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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25486
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We have a flat in our house that is saying they don't need

Resolved Question:

We have a flat in our house that is saying they don't need landlord consent to convert a flat roof despite a clause stating any external changes to building require consent, because he has a clause in his lease that says subject to planning he can use the roof as a terrace
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.
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. may I clarify is this a maisonette arrangement which consists of two or more flats in one property?Do you collectively own the freehold between all of you as flat owners or is the freehold owned by a third party?Do you happen to have the wording of the clause providing him with consent to use the roof as a terrace?
Customer: replied 2 years ago.

Hello, 4 flats, with share of contribution/voting 35/15/25/25. We own the freehold and manage it through a management company. 85% are trying to block (3 flats).

Clause in Flat 2 states:

The right to use as a roof terrace the area edged in blue on the plan annexed hereto together with the right to carry out any works in connection with the formation thereof and access thereto subject to first obtaining all necessary local authority consents"

The clause in all leases states, which we believe is our safety net:

"Not without the previous consent in writing of the Landlord to make any structural alterations or structural additions or alterations to the property or to the external appearance thereof"

Expert:  Joshua replied 2 years ago.
Thank you. The clause providing him the right to carry out works to the terrace does not stipulate that he has the right to do so with the landlords consent and as such it does not override or dispense with the clause requiring landlords consent for structural works. Although he has a right to form a roof terrace this will still be subject to landlord consent. As you know he will also need planning permission.accordingly, the landlord company is entitled to require the tenant to seek consent from the landlord before commencing the works failing which an action can be sought for breach of covenant and the company can seek an injunction together with costs providing the lease contains a provision indemnifying the legal costs in association with a breach of covenant which almost all residential leases do.However, the landlord company will need to consider firstly that the individual would appear to have a right to form a roof terrace and has a right to ue the roof terrace and the provisions of section 19(2) landlord and tenant act 1927 which implies a term into the lease that the landlord company may not unreasonably withhold consent. Accordingly, I cannot see that the landlord company can simply block the proposal altogether though it could insist on conditions or modifications it can demonstrate is reasonable so as not to detract from or damage the remainder of the property and architects drawings to ensure that the works are safe, for example the load is not excessive for the structure. In addition, any of you as leasehold owners individually can object to the individuals planning permission because without this, he will not be able to proceed so there may be an opportunity to block the proposal using this approach.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 2 years ago.

The house is in a conservation area and was designed by a famous artist. The proposed roof terrace is half the size of our master bedroom and sits below the other two flats bedroom. Therefore we do wish to withhold consent and feel this is not unreasonable since we all disclosed to him before he exchanged our objection. So I am clear, as this is currently a flat roof, could this be communal property until it's made a terrace? Secondly, as he has put out a table and chairs already, could we stop him using it until he has permission?

Expert:  Joshua replied 2 years ago.
on the face of what you say above, whilst the area edge blue on the plan to his lease is not demised to him, his lease does provide him a right to use the area as a roof terrace. accordingly, the roof terrace forms part of the property owned by the landlord company - i.e. is not demised to any particular tenant - but the tenant in question has a right to use the same and has a right to convert it into a roof terrace. These rights only apply to the extent edged blue on the plan referred to. You will be able to tell by looking at the plan as to whether this relates to the entire roof terrace or just part of it.the factors you mention will obviously be taken into account by the local authority in respect of any planning application the tenant makes and generally applications which affect the outside of a property in a conservation area are treated more strictly than those in non-conservation areas. You may wish to speak to a local planning officer to ascertain how the council may treat the application. As above, any of you as individuals can reject the planning application and if refused, he cannot proceed regardless of any other factors whatsoever.If he obtains planning permission, the landlord company may only withhold consent so far as it is reasonable to do so. Reasons which are considered reasonable are if the proposal damages the remainder of the building or the character of the proposal adversely affects the landlords interest in the property, the landlord is bound by the fact that the leases already granted him permission to convert the roof terrace edged blue in principle so I cannot see that the landlord could object to any conversion at all.If he is using the roof terrace already and it is not suitable for a table and chairs in its current physical condition, the landlord can require them to remove the same. However, if the location of chairs on the roof in its present state is not damaging the roof, as he has a right to use the area edged blue, the landlord could not require him to remove items from that area.If you have no further questions for now I should be very grateful if you would kindly take a moment to click 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
Customer: replied 2 years ago.

So to be clear, if we say that we believe the outside of the property will be changed by knocking out a window and adding a door, and that it will change the achitecture of the building along with noise traffic (he's nocturnal and we can all hear him talking out there past midnight) is not reasonable under the freeholders ability to withhold?

Expert:  Joshua replied 2 years ago.
another property is in a conservation area, it is reasonable for the landlord to object to proposals which unreasonably change the character of the building and the landlord could look to impose conditions to ensure that any roof terrace structure is sensitive to the character of the building. If the question is can the landlord object to a roof terrace of any kind, I cannot see that it can because the lease has specifically granted him a right already to convert the roof terrace and the landlord is bound by that provision even if it was granted in the lease by a previous landlord. The landlord could also insist on reasonable soundproofing to be installed so as to insulate against footfall and other noise and could insist on the appointment of a surveyor to inspect and report to the landlord company in this respect.in essence, I cannot see that the landlord can refuse consent to a roof terrace of any kind due to the provisions already contained in his lease but the landlord can impose reasonable conditions to minimise damage or detraction from the remainder of the building as above and insist that surveyors are appointed to act for the landlord to advise them in this respect at the tenants cost.Of course, although I think the landlord would have difficulty in terms of refusing consent altogether, the same is not true of the local authority and it may be that planning permission will not be granted in which case the council does your work for you.finally, in terms of late-night noise, the least likely contains a provision not to cause a nuisance and may even contain specific provisions relating to noise after a certain time. You may consider checking the lease in this respect and if so, if he does cause noise after a certain time or causes nuisance in breach of such conditions, the landlord company could take action for breach of covenant in this respectHave I been able to help you with all your questions on the above?
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