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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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I would like advice from a leasehold solicitor regarding withholding

Customer Question

I would like advice from a leasehold solicitor regarding withholding of reasonable consent and memorandum and articles of association re the Resident Management Company I have a sharehold of the freehold in and how it relates to decisions regarding consent to alter structure (building an extension)
Submitted: 4 years ago.
Category: Law
Expert:  James Mather replied 4 years ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.
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Can we have the full background details please? Thank you
Customer: replied 4 years ago.

I am a shared freeholder (one of 25) we have 3 directors of the Resi Management company. Lots of politics since 2 have recently joined the other one who used to have sole directorship, accusations and bull headed ways of management from 2 new directors. I put in plan perm for extension to be built over my patio (part of my demised premises) in 2011 which was objected to by the 2 directors, however was granted PP nonetheless. One of directors lives directly next door to me and complained re light and privac - she has a conservatory herself which was voted by all shareholders as consent in 2000. I now need to seek freeholder permission and these 2 directors are implying that it shouldn't go to communal vote of shareholders as with my neighbours consent, but that they decide solely on this. On a posting on a forum one of directors hs made it very clear they will vote no to consent. I look at memorandum and articles but not sure where reference is found re how to reach decisions re freeholder consent etc, so would like guidance. If they overrule going to communal vote, what do I have as recourse to argue consent has been unreasonably withheld?

Expert:  James Mather replied 4 years ago.
thank you. In your lease, does it say that consent should not be unreasonably withheld?
Customer: replied 4 years ago.

Yes "not to make structural alteration or structural addition to the demised premises or the internal arrangement thereof........ without the previous consent in writing of the lessor such consent not to be unreasonably withheld"


My concern is that as I will use 2 external walls to form 2 walls for patio, I need lessor consent to use lessor property as these walls aren't mine and I think this is going to form basis of the withholding of consent, without any mindfulness to reasonableness in withholding it.


1 of directors is my next door neighbour & had own conservatory built in 2000 against external wall and cut into it to create opening, but got collective consent from a shareholders vote. Both these directors clearly have a bias against the build, having both objected to planning permission and 1 of them posting on a landlord zone forum asking if they need to even consult with other shareholders& concluding "The flat owner may well genuinely believe no further consent is needed, and it is tricky to refuse something which hasn't been sought..." which to me is crystal clear the way they want to go with the decision without any care as to whether this will be a fair and representative decision on behalf of all the shareholders whose interests he's supposed to represent.

Customer: replied 4 years ago.
Relist: Incomplete answer.
Expert:  James Mather replied 4 years ago.
I am sorry, but this is not an instant service because we are all solicitors in practice. We do not sit online 24/7. We all have clients and court and other users on this site and travelling and weekends and evenings etc. We are often on and offline all day every day. Sometimes therefore you will get an answer in minutes and sometimes it is hours. The site does give the impression that experts will answer in nanoseconds unfortunately, the site is hosted in San Francisco and we are all based in the UK and we have no control over site content.

The landlord has to give consent but obviously cannot unreasonably withhold it. They can delay it but they cannot withhold it.
It comes down to the landlord company therefore the decision being made by the directors. It is not a decision that is made by the shareholders. If the directors decide that they don’t want this and it would come down to whether that decision is reasonable or unreasonable. If one of the directors has built a conservatory, then it is highly likely that this decision not to give you consent, is unreasonable.
If they will not bend however you are faced with taking them to court to get the court decide whether refusal is reasonable or unreasonable.
A solicitors letter threatening that and an application for costs, might focus their mind.
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Customer: replied 4 years ago.

Both have self interested reasons not to want it, not ones for the good of the whole of the freehold community and I have nothing I can do to stop them abusing their power in this way.


If I take it to court can these 2 directors use money from company garnered from the service charge to cover their legal costs? This was implied by director who posted a listing on an advice forum - I'd have thought this was gross misuse of all of our shareholder funds, especially if the majority disagree with their decision to refuse consent in first place but haven't been given a chance to vote on it.

Expert:  James Mather replied 4 years ago.

The shareholders can always propose a resolution to remove them as directors on the basis that they propose to use the company money to fund their self-interest litigation. You can also ask the court to award costs against them personally and order them, under no circumstances to take the money from the service charge




unless you have experience of this kind of litigation, you really do need to see a solicitor because it is about as much a do-it-yourself job as taking out your own appendix!

Customer: replied 4 years ago.

I wouldn't dream of representing myself in this!


What muddies waters is that I have marketed my flat for sale with planning permission in place (whilst at no time said I'd also got the freeholder consent) However, fear is now that I have interested buyers whose mortgage has just been agreed, it could implode once their solicitor approaches the property company to find out if a licence to alter is going to be granted, which it probably isn't. I'd then be likely to have lost my sale and the property I've had my offer accepted on.... so the 2 directors actions have wider implications than just an annoyance in refusing consent.

Expert:  James Mather replied 4 years ago.
You would have no claim in respect of the loss of the sale. You are under a duty to advise the buyers as to whether the consent has been obtained yet.
Customer: replied 4 years ago.

I would not withhold this information from them as I am sure their solicitor will ask if consent has been granted from my solicitor, who is aware it has not. I wasn't meaning I'd use this to claim further from the Directors, more to put it into context.


I think it is going to be a better proposition if request for requirements to get consent comes from buyers solicitor rather than directly from me, given that there has been lots of politics relating to the ways in which the 2 people have been conducting themselves since becoming directors, many shareholders are very dissatisfied with them. I will leave it until then to gauge what reasons they have for the refusal.



Expert:  James Mather replied 4 years ago.
just one final thing.
The request for consent might be more forceful coming from a solicitor and the solicitor pointing out that if they unreasonably withhold it, they will end up in court and you will ask the court to award costs against them personally.
It might focus their mind.
Please do not forget to positively rate my answer or I do not get paid for my time. The thread does remain open and we can continue this exchange. Thank you
Customer: replied 4 years ago.

Would not the buyer's conveyancing solicitor include the reference to consent not being reasonably withheld too though? I don't want to antagonise them at this stage as feel they may try to be fairer minded if its the buyers requesting it rather than me...


I understand what you mean though, and I will reserve right to additionally send them a letter from a litigation type solicitor if my sale is at risk of collapsing after refusal to consent is relayed to the buyers conveyancer (which is looking likely) and it is revealed what reason they are using to refuse it.


Expert:  James Mather replied 4 years ago.
in the standard enquiries made by the buyer, you have to disclose if consent has been given to any work.
there is nothing to say that you have planning permission but don't yet have the freeholders consent. If you have already been declined, you would have to disclose that
Customer: replied 4 years ago.

Yes that s why my inclination is probably not to request it myself but leave to buyers conveyancers to request it on their behalf.


If it means renegotiation of price of flat then I'll deal with that when and if it arises.


Thank you, your advice has been useful and at very least I now know I could try to take them to court if need be.



Expert:  James Mather replied 4 years ago.
thank you,

I am glad to assist you.

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