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MatthewM1117
MatthewM1117, Solicitor
Category: Property Law
Satisfied Customers: 1510
Experience:  Expert
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I’m looking for a specialist solicitor with experience of

Customer Question

I’m looking for a specialist solicitor with experience of breech of covenant on lease hold flat. Previous owner built a small conservatory on ground floor maisonette in a communal garden (garden shared between upstairs maisonette and downstairs 2 people). Probably in the 1980s early 1990s. Freeholder local council. Both maisonettes changed owners in 2019. Neighbour now wants to take legal action to get me to remove conservatory. Can I challenge this with a chance of winning ?
JA: Because laws vary from place to place, can you tell me where the property is located?
Customer: London borough of Wandsworth
JA: Has anything been filed or reported?
Customer: not officially. She texted me to say she has done it
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: council have known about it for years and took no action with previous owner
Submitted: 12 days ago.
Category: Property Law
Customer: replied 12 days ago.
Unfortunately no documentation to prove exactly when conservatory was erected. Flats original leased date from 1984/86 bought by tenants in the flats from Wandsworth. Only one previous owner.
Customer: replied 12 days ago.
Both previous owners unfortunately died in 2020
Customer: replied 12 days ago.
Conservatory is old construction type - plastic roof/ pvc and glass
Customer: replied 12 days ago.
Size of conservatory is 12ft x 8’4”
Customer: replied 12 days ago.
But like half an octagon shape
Customer: replied 12 days ago.
Lots of solicitors look into the planning permission issue but it’s not the issue it’s because it’s on what is loosely considered a communal garden. Both leases only mention access to communal spaces. There is a front and back garden. To get to back garden you have to walk down passage past my front door on side of property.
Customer: replied 12 days ago.
Can I force council to sell me the land? Unfortunately I can’t purchase the freehold on my own and the owner of other maisonette won’t participate.
Customer: replied 12 days ago.
Property was built around 1920
Expert:  MatthewM1117 replied 12 days ago.
Good morning thank you for contacting Just Answer my name is***** am a practising solicitor with several years experience and I will be assisting you today. Please note that this is a Q and A platform and no lawyer client relationship is created. I am sorry to hear about your circumstances, do you have a copy of the lease so that I may review this?
Customer: replied 12 days ago.
I have. How do I send
Customer: replied 12 days ago.
H
Expert:  MatthewM1117 replied 12 days ago.

There is a paperclip icon next to the chat box you will need to use this to attach the lease.

Customer: replied 12 days ago.
File attached (SV44ZLZ)
Expert:  MatthewM1117 replied 12 days ago.

Thank you for the attached, I will review this and advise accordingly.

Expert:  MatthewM1117 replied 12 days ago.

When you purchased the property did your solicitor raise enquiries in relation to the conservatory? Did you receive any form of indemnity policy?

Customer: replied 12 days ago.
We did and couldn’t get to the bottom of it so I took out indemnity insurance on it
Customer: replied 12 days ago.
It’s not a planning permission issue
Customer: replied 12 days ago.
The estate agents really didn’t understand it
Expert:  MatthewM1117 replied 12 days ago.

The issue is that under clause 3 (c) of the lease there is a clause preventing structural alterations or additions to the property without consent of the Council. Without the consent from the Council they can request that the conservatory is taken down.

Customer: replied 12 days ago.
I know that. But they haven’t done anything about it for over 20-25 years
Customer: replied 12 days ago.
They didn’t take action with previous owner
Customer: replied 12 days ago.
under the Limitation Act 1980 (LA
1980)
Customer: replied 12 days ago.
What is the likelihood of enforcement after an extended period of time? Can I contest it?
Expert:  MatthewM1117 replied 12 days ago.

If the restrictive covenant has been breached continually for over 20 years without any complaint by the council they will no longer be able to enforce against the breach.

Customer: replied 12 days ago.
How can I go about proving that? I assume the burden on me is to prove when it was built. Previous owners of both flats died and weren’t able to answer question when alive except to say it was built a long time ago late 80s
Expert:  MatthewM1117 replied 12 days ago.

If you have confirmation that the conservatory was built in the lates 80's this will be sufficient as this would be well over 20 years ago.

Customer: replied 12 days ago.
I don’t have written proof just verbal confirmation from someone who is now deceased, that’s the problem.
Customer: replied 12 days ago.
I assume the council can seek to enforce it by saying there is no proof it’s more that 20 years old.
Expert:  MatthewM1117 replied 12 days ago.

It would be rare for a person to keep documents that related to a conservatory 30 years ago. In addition, most conservatory installers would be able to confirm an estimate of the age of a conservatory due to the materials used, design and wear and tear etc.

Customer: replied 12 days ago.
I know it would be rare but then how would the legal opinion go. In the absence of absolute proof do I have a chance to contest it and win
Expert:  MatthewM1117 replied 12 days ago.

I would advise contacting conservatory installers and request they look at the conservatory and request an estimation of when this was installed, should the council seek to enforce the covenant you will have this to support your version.