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Jeremy Aldermartin
Jeremy Aldermartin, Solicitor
Category: Property Law
Satisfied Customers: 9569
Experience:  Dual qualified Solicitor and Attorney
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I own a leasehold flat. The Lease grants me the right to go

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I own a leasehold flat. The Lease grants me the right to go onto ALL of the land which surrounds the block of flats. The Freeholder (a large company) wants to sell a section of this land to a Developer; hence the Freeholder wants me to sign a Deed of Variation in which I would give up my right to go onto that section of land. My question is: What if I simply refuse to sign that Deed of Variation? Would the Freeholder still be able to sell that piece of land to the Developer? Would the Developer be able to develop that section of land if I still have the right to go onto it? Regards; Rob.

Hello Rob,

I am a solicitor.

The freeholder would be in breach of covenant if they do that, which is why they are asking you to agree to the Deed of Variation of your lease.

Otherwise you could sue your freeholder for breach of contract.

May I help further?

Customer: replied 15 days ago.
Thank you for your reply. Just to be completely clear: Planning permission has been granted to build two semi detached three story houses on that piece of land, which, were they to be built would have a value of approximately £800,000 each (£1.6million in total) meaning that section of land would therefore be worth around £750,000. I have been told by another Solicitor (who is now retired) that the Freeholder is being greedy by not offering to share about one third of that £750,000 sum (i.e. £250,000) equally amongst the 16 Leaseholders but has instead tricked and coerced most of the other Leaseholders into signing the Deed of Variation. So my question is: If it turns out that I am the only one of the 16 Leaseholders who has not signed the Deed of Variation, does that really mean that that fact alone would prevent the building of those two houses? and therefore does that make my signature on the Deed of Variation very valuable indeed?
Customer: replied 15 days ago.
Could the Freeholder "steamroller" through and sell that section of land and the Developer develop that section of land WITHOUT my having signed the Deed of Variation and if I then sue the Freeholder I receive only a relatively small sum? And if I were to sue the Freeholder for breach of covenant, would I lose my right to go onto that section of land? or do I retain the right to go onto that section of land until and ONLY until such time as I sign the Deed of Variation? Rob.

The fact that the freeholder has got the others to sign the Deed of Variation without any compensation is a matter between them. If you refuse to sign, the freeholder may still go ahead with the sale and the new owner does not have to honour your rights of access over the land.

Your recourse would be against the freeholder and you may sue them for damages for breach of covenant. It would then be a question of how much you can negotiate to get out of them without going to court or asking a court to award you damages of xyz amount.

All the best

Customer: replied 15 days ago.
Do I understand correctly? i.e. that if the Freeholder were to sell that piece of land to a Developer who, as you say, would NOT have to honour my right of access over that piece of land, that means that my right of access over that piece of land would effectively be taken from me against my will? I had thought (and indeed been told) that my right of access over that land is "in black and white" (i.e. in the Lease) and cannot be taken from me if I do not wish to relinquish it.

Yes, that is why you would be taking action against the freeholder as your right in your lease will have been taken away from you thanks to the freeholder's actions. So you sue them for breach of covenant /breach of your lease.

Good luck

Customer: replied 14 days ago.
Firstly: Please accept my apologies for the delay; this is due to the fact that presently I am having to pop into an Internet cafe to go online. Assuming that I refuse to sign the Deed of Variation and hence I DO NOT sign away my right to access that piece of land: If, AFTER the Freeholder has sold that piece of land I then walk onto that piece of land and I choose to simply stand there, would the new owner be able to legally order me off of that piece of land? i.e. would the law say that I would be trespassing? Regards; Rob.

That is a moot point as you could argue that you have a right of access and they could argue that they own the land without having granted any access rights.

A court would be able to determine the issue.

Customer: replied 13 days ago.
Thank you for your reply. I will give you a five star rating but may I first ask one or two more related questions?: You say that it is a moot point regarding whether I could be ordered off of that piece of land by the new owners as a) I could argue that I never relinquished my right (written into my Lease in black and white) to access that piece of land and that b) the new owner could argue that he has purchased that piece of land without having granted me any such right of access. Is it not "written" somewhere? "in the statute books" (as it were)? Please don't think of me as being a greedy or unreasonable person: Ordinarily I am easy going, fair and generous and were I to find myself in a situation in which (for example) my next door neighbour were to need a thin slither of my land in order to be able to reverse their car up the side of their house to their garage in their back garden, I would NOT be thinking of how much it is worth to them and how high a price I could therefore get for it: I would most likely let them have it for free or a nominal price. My attitude is completely different regarding my Freeholder simply because my Freeholder is being very greedy in not sharing any of this huge "windfall" (i.e. the sudden huge increase in the value of this piece of land) with the Leaseholders in return for them all signing the Deed of Variation giving up their right to access that piece of land. Instead he has (it seems to me) coerced and tricked the other Leaseholders by sending letters which have been worded in such a way as to give the impression that the Leaseholder MUST sign the Deed of Variation, and with a sense of urgency too. Hence the Freeholder looks to save around £250,000 i.e. the sum which would NORMALLY have been shared between the Leaseholders in return for them all signing the Deed of Variation. And so I am prepared to play the Freeholder at his own game and I want to get as good an idea as possible as to how this situation appears to the Freeholder, and furthermore if I am the only Leaseholder who has refused to sign the Deed of Variation, what sort of sum the Freeholder might be prepared to pay me to sign the Deed of Variation, especially if I remind the Freeholder that I have the right to access that piece of land as it is written in black and white in my Lease and that if development were to commence without my having signed the Deed of Variation I would make sure that the Developer and subsequently Estate Agents and hence the Conveyancing Solicitors of any prospective purchaser(s) would be made well aware that I have the right to access that land and that I will regularly exercise my right to access that land until such time as I sign a Deed of Variation relinquishing that right. So, given all of the forgoing and bearing in mind that that piece of land would have a value of approximately £750,000 and that the two proposed houses (for which planning permission has been granted) would have a combined value of approximately £1.6 million AND that the Freeholder has saved around £250,000 by not sharing this sum between the Leaseholders, would you be able to take a rough "ball park" guess as to what sort of sum the Freeholder might be prepared to pay in order to secure the one outstanding signature on the Deed of Variation? (The Freeholder's Solicitor has told me that four of us Leaseholders have not signed, but that the other three have simply not engaged and so the Freeholder has taken out indemnity insurance regarding those three. It seems that I am the only "awkward" one). I can tell you that I have declined an offer of £20,000 and that the Freeholder's Solicitor has asked me at what level we might achieve settlement. Given all of the foregoing facts and figures and possibilities, might a figure of £60,000 be realistic? or even more? If you were in the shoes of a) the Freeholder or b) the Developer, what would your thoughts be? Would you be concerned that you might find yourself with two houses whose land is still subject to an easement i.e. there is somebody who will be regularly walking onto that land and hence prospective purchasers would not want to buy such houses or at the very least the sale prices would be greatly reduced? (Apologies for the length of this piece, but I am very keen to get this right!). Thank you again and best regards; Rob.

Hi thank you for your message, please note that I will look to provide an accurate but nevertheless speedy reply to your inquiry. I will endeavour to help you today.

I will look to answer your queries and I think answer them relatively quickly in essence you could go and stand on the land but this would be trespass because your rights over the land would cease once the land was sold to the new owner. You would not get £250,000 or anything near £250,000 if you sued the freeholder, you could continue to refuse to sign the deed of variation but the freeholder could sell the land to the new owner anyway and sure you could sue them but you will get nominal compensation given your right is access to the land not ownership of the land. I trust this assists

Jeremy Aldermartin, Solicitor
Category: Property Law
Satisfied Customers: 9569
Experience: Dual qualified Solicitor and Attorney
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