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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 31701
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We are freeholders and leaseholders in a building.A

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We are freeholders and leaseholders in a building.A freeholder has installed a garden office approved by planning permission.But the office is being used for social gatherings in the very late night hours.Waking others in their flats.As planning was approved we included specific "use of purpose" clauses in the head lease.What is my legal recourse? Thank you
JA: Because laws vary from place to place, can you tell me where the property is located?
Customer: London W10
JA: Has anything been filed or reported?
Customer: I' ve reported the disturbances many times to the Management company and just wrote to local planning alerting them to "change of use" from the approved "office" usage defination
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Evidence is difficult to obtain as it at 2am 3 am social gatherings and they hide behind blinds!

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 sorry to read of the above. May I clarify, is this another party that occupies the same building or do they occupy an entirely unrelated building next door for example?

Customer: replied 12 days ago.
Hi Joshua.Good to hear from you.The answer is the party owns the basement/garden flat in the same building as myself
Customer: replied 12 days ago.
Happy to chat by text
Customer: replied 12 days ago.
He is one of the freeholders of 8 flats in the building

  1. thank you. Is your concern in relation to defence and the nuisance or just in relation to the nuisance please?
  2. would I be right in assuming that you own the freehold through a nominee limited company whereby you are each members or shareholders of that company?

Customer: replied 12 days ago.
I am a leaseholder. My concern is both the breach of the term in the head lease stipulating “no social gatherings . And the change in planning use designated as Office Also the nuisance .
Customer: replied 12 days ago.
As a leaseholder I do t hold shares but pay 1/8th of annual costs
Customer: replied 12 days ago.
Do not

thank you. If you do not have shares in the freehold company if indeed that is how the freehold is owned, then in what way do you understand yourself to be a freeholder please?

Customer: replied 12 days ago.
I am a leaseholder not freeholder .
Customer: replied 12 days ago.
The management company is responsible for upkeep of the building and I pay annual charges
Customer: replied 12 days ago.
Two freeholders are directors of the company and use a managing agent .The added clause in the head lease after the garden office was installed was to protect all the flats . Hope this is clear !

My confusion was the result of what you say above "We are freeholders and leaseholders in a building". Thank you for the clarification.

  1. from what you say, do I therefore now understand correctly that although you are not a joint freeholder, certain other residents in the building are freeholders for the building?
  2. if so, is the leaseholder who owns the basement flat that is causing the problem also a freeholder?
  3. have you approached any of the freehold directors in relation to the matter? If so, what action if any have they taken or propose to take?

Customer: replied 12 days ago.
Sorry for the confusion . The basement flat owner is a freeholder. And
Customer: replied 12 days ago.
The freeholder directors described the amendment to the headlease . They said I have legal recourse . Hence contacting yourself Joshua
Customer: replied 12 days ago.
They said they had included a clause to exclude Social gatherings in the garden office .

may I clarify, are you suggesting the freehold company has granted permission to the basement flat owner to direct the fencing and hold parties? if I have misunderstood this, are you able to clarify your above comment?

Customer: replied 12 days ago.
No ! The opposite ! Planning gave permission for the garden office to the basement flat
Customer: replied 12 days ago.
The added headlease clause is to protect any use for parties or social gatherings

  1. thank you. So to return to the previous query - have you approached the freehold company to take enforcement action against the basement owner and if so, have they been willing to do so?
  2. you refer to a cause in the head lease. Does this prohibit or permit parties?

Customer: replied 12 days ago.
they said I have legal recourse . They suggest I ask a lawyer to write a letter . Hence contacting you to see how else I can proceed .
Customer: replied 12 days ago.
I’ve contacted planning department to tell them if the change of use from just a garden office
Customer: replied 12 days ago.
What will a mere letter do ?
Customer: replied 12 days ago.
To me they are breaking a lease term and changing the designated planning use

thank you. The granting of planning permission simply as a licence under the town and country planning act. It does not in and of itself confer any legal authority to build or as the case is here, use a property in any particular way

there were course I cannot comment on specifics without sight of the lease or leases in question, generally, a lease would include a provision not to cause a nuisance and will also typically contain use restrictions in how property can be used.

As such, there are likely to be at least one if not more breaches of the lease in this respect. Leases will typically also contain a lease enforcement covenant allowing you to require the landlord - i.e. the freeholder - to enforce provisions of the lease upon request.  This is important because you cannot directly enforce lease terms. As such, providing there is a lease enforcement covenant which almost all leases contain, you can ask and indeed require the landlord to take action to enforce the lease in the event that there are breaches of the lease.

If the landlord refuses to do so, though I would hope that would not be the case, you can bring an application to force the landlord hand if that becomes necessary by applying to court using the following form:

https://www.gov.uk/government/publications/form-n208-claim-form-cpr-part-8

Customer: replied 12 days ago.
Great Joshua . I’ll approach the freeholder to apply the lease enforcement covenant today . Thank you for your advice , clarity and understanding .
Customer: replied 12 days ago.
One final thing Is like to ask . What about evidence ? Photos and videos are taken at 1 or 2am and not great quality . Individuals are not clearly identifiable but lighting is on in the garden office !

I cannot see it is necessary to identify individuals. The point would be whether the property is causing a nuisance and is being used in breach of the lease or not. providing the videos enable the property to be identified, I cannot see that this would not be sufficient in and of itself

Customer: replied 12 days ago.
Thanks again for you clarity . Would you send me your email ?And I’d like to stay in touch in future for legal advice from you . Best

unfortunately, I am not permitted to disclose personal contact information but you are welcome to return to this thread if you have any follow-up questions

Customer: replied 12 days ago.
Oh sorry . I’ll keep the thread for future contact . Good weekend ! Best

I'm glad the above answers all your questions for now. If you have any follow up questions please revert to me.

Customer: replied 12 days ago.
Sure . Best

I'm glad the above is of some assistance

I hope I was able to answer your question. If you would like to ask me another question in the future, you can add me as a favourite Expert. You'll have the option to do that on your "My Questions" page if you choose to rate our interaction or you can request me by name if you wish. Thank you again for visiting JustAnswer and see you again in the future I hope.

Joshua and other Property Law Specialists are ready to help you
Customer: replied 8 days ago.
Hello Joshua

I hope the above was of some assistance