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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 28236
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I wonder if you can help me? I live in a Victorian Manson

Customer Question

Hello JoshuaI wonder if you can help me?I live in a Victorian Manson block in Maida Vale, London. I own a long leasehold property of circa 950 years remaining. The demise shown in the lease is a garden level basement flat with its own private garden.In 2011 I applied for permission to build an orangery style extension from my flat into my garden. Westminster Council granted me planning permission but the landlord refused it, citing that "they were uncomfortable with my proposal". No other reasons were given. I tried again in 2018 but it was refused without any further clarity as to why.In 2020, I applied to the Freeholder to build a garden room at the back of my garden (20m+ from the main building), and they have refused that too, citing that "any permission granted has to be for the benefit of the building and all leaseholders". They have however granted permission to many leaseholders over the years for structural alterations, basement extensions into coal bunkers, and most recently for many top floor flats to buy and extend into the lofts, and granting them each free private access to an adjoining roof terrace [not in their demise]. These are all alterations which could easily be argued are not for the benefit of all leaseholders.The lease clause relevant to alterations is as follows;"12. Prohibition against alterations.Not to permit or make or suffer to be made any structural alterations or to the exterior or any alterations in the external plan arrangement or construction or in the height roof principal or load-bearing walls timbers or girders or architectural appearance of the demised premises or the Group or any part thereof Provided That the Lessee may (with the consent of the Lessor and after the Lessor has approved all plans) make internal non-structural alterations to the demise premises."I am not sure, based on the wording of the lease whether this is an absolute lease clause, qualified or otherwise, as it seems to combine both.Are there able to refuse me permission with non descript reasons which are clearly in conflict with other permissions they have granted to other leaseholders? If so, is there any way to challenge them on this?Many thanksAndy
Submitted: 13 days ago.
Category: Property Law
Customer: replied 13 days ago.
Ok
Expert:  Virtual-mod replied 12 days ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 12 days ago.
I'm ok to wait... Thanks
Expert:  Joshua replied 11 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine how frustrating it must be. I will certainly try to clarify the position for you.

May I confirm that that is the only clause relating to restrictions for alterations that you have identified in the lease please?

Customer: replied 11 days ago.
Hi Joshua... yes, that is correct. This is the only (and entire) clause relating to alterations. Thanks
Expert:  Joshua replied 11 days ago.

thank you. As you very likely aware, s19 Landlord and Tenant Act 1927 provides that where there is provision in the lease requiring consent from the landlord, whether the lease states as much or not, a proviso is implied by statute that consent must not be unreasonably withheld.

This would apply to the clause in your lease however, as you observe, there appears to be an issue namely that the provision only relates to internal alterations. There is no mention of not altering without consent in relation to external alterations. Rather, the clause simply provides that no structural alterations may be made. Where this is the case, the above legislation does not imply any caveat that consent cannot unreasonably be withheld.

I fear therefore that you would be entirely reliant on the landlord to provide consent less any work you carry out would amount to a breach of covenant. If you went ahead with the work anyway, if you are able to complete the work it is likely that the landlord would principally be limited to claiming damages for loss in value to the freehold which may be limited in terms of loss, but if the landlord were to take action before works were substantially completed, then the landlord may be able to force removal of works.

Expert:  Joshua replied 10 days ago.

I hope the above answers all your questions. If there is anything else I can help with please reply back to me otherwise thank you very much for visiting JustAnswer and I hope we will see you again in the future.

Customer: replied 10 days ago.
Thank you Joshua.You have been very clear. The only concern I have is that the Freeholder's management company which is run by a volunteer board (directors are leaseholders and each leaseholder has a share of the Freehold) has adopted a policy of not unreasonably withholding consent to leaseholders who request a 'licence to alter' to make internal structural improvements (combining two rooms into one for eg). Does this imply that the board has effectively changed or adopted new lease terms to make it more modern? Essentially, I struggle with the way a lay leaseholder board which represents all leaseholders (as collectively they comprise the Freeholder) can treat me differently to others.Further to this, the reason they gave me for not granting me a licence is that a licence to alter is granted where the project "contributes to the general ‘well being’ of the building”, “has more than an individual benefit” and is “in the overall interests of leaseholders”. To my mind, any licence to alter will only benefit the leaseholder it is offered to, that any structural alteration can only be a detriment to the building of not done well and is most certainly not in the interests of all leaseholders.Any thoughts on how I can challenge and respond to this refusal? Can I make a legal claim against them that they are being unfair or disrespecting the lease, etc?ThanksAndy
Expert:  Joshua replied 10 days ago.

unfortunately, the lease distinguishes internal and external alterations and provides that internal alterations must not be unreasonably refused in terms of consents but external alterations simply cannot be made. It is of course open to the freeholder, which I appreciate is not one person, to nevertheless grant consents for external alterations but if it refuses, I cannot see any basis for redress regrettably based on the wording of the clause you kindly posted