Absent freeholder since purchase in 2011 suddenly appears?

by Readers Question

15:01 PM, 21st October 2020
About a month ago

Absent freeholder since purchase in 2011 suddenly appears?

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Absent freeholder since purchase in 2011 suddenly appears?

I own a 1st floor top flat that I purchased in 2011 for renting purposes. The property is leasehold however there is no service charge or ground rent payable. The freeholder has been absent since I purchased the property and I have no contact details.

I purchased a 2nd flat below mine last year, so I now own the top and bottom flat. It’s in a building with 6 flats, but they all have private entrances and gardens. The only communal area is the rear grass of the property for the building and the streets, grass verges around the estate.

I rent both flats out and 2 of the other flats in the block are rented out and have been for several years. I purchased in 2011 as a rental property when I knew others were renting on the estate for a decent rental income.

Recently a gentleman turned up at my bottom flat unannounced claiming to be the freeholder and had come to do an inspection. He told my tenant that the conservatory erected on the property (which was put up in 2014 and was on the property when I bought it), had been put up without his permission. He also told my tenant the flats were not allowed to be rented out, only the owner (myself) or my family could live in them.

My tenant passed my contact details onto him, and he has texted me threatening legal action and to serve notice to the court as he says I am in breach of my leasehold because of this conservatory and the fact I rent the property out. I have given him my name and address and told him to put it in writing.

I have never met this gentleman nor has any of the flat owners or private landlords on the estate. He has been absent since purchase and does not assist in any repair work or have any active interest to the flats. I believe the council has tried to contact him previously to sort out some issues with trees on the land but their letters have gone unanswered (whatever address they hold for him) so we have all (owners and landlords) had to chip in to sort the issues when they come up.

Does anyone have any advice on if this chap has any legal position to take legal action against me for renting the property and having a conservatory on the property? I am not sure what his motive is other than trying to get some kind of financial remuneration from me?

Many Thanks
Matt


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Comments

TrevL

16:40 PM, 21st October 2020
About a month ago

All depends on what the lease contract says.

If you don't have one you may be in for a legal fight, but then he may just be threatening to see if you fold. The fact you pay no ground rent and service charge is a worry as well, did your solicitor not advise you of the implications of this? Or did you buy at Auction?

Its always possible to find who a freeholder is from the land registry extract, its £3 for title and £3 for plan....you can also get your own lease titles, and these should define the legal convernants and easements as long as the titles were filed, which they legally had to be from around 1989 onwards.

Freda Blogs

12:08 PM, 22nd October 2020
About a month ago

Some thoughts:

If the freeholder has been absent since 2011, do you know he is who he says he is? Check the land registry and if the freehold has changed hands in recent years and you have not been advised, there are a number of issues arising from that - you should have been given the opportunity to acquire the freehold and/or received a notice under S3 L&T At 1985.

From what you say, he has not complied with any landlord covenants in the lease either, such as repairs, so that could be a good basis for counterclaim.

You say that there is no service charge or ground rent payable. Is this because the lease is silent with no relevant provisions, or because nothing has been demanded or paid?

It may be that the freeholder has in effect “acquiesced in the breach“ i.e. by not taking action over your conservatory or subletting for many years, he has implicitly given permission for them to remain.

Such matters usually turn on the wording of the lease, so if he persists with his claims, taking legal advice may be recommended.

Ron H-W

12:26 PM, 22nd October 2020
About a month ago

A few thoughts, not necessarily in a well-organised sequence:

First of all, I would point out to you that serice charges are for the soole purpose of running/repairing/insuring/managing/maintaining the estate/property, and any moneys thus collected are HELD IN TRUST FOR THE LESSEES.

Secondly, there is a tecnical difference between "no ground rent" and the legal fiction (to preserve the landlord/tenant relationship) of "one peppercorn per year if it be demanded".
CHECK YOUR LEASE for such details - you do have a copy, don't you?
If not, anybody can get a copy for £7 from the Land Registry.
Maybe the document specifies a monetary ground rent, which simply has not been paid/collected?

TrevL mentioned the £3 "extract of title", which should/would/must give the name and add4ress of the owner, and would get updated in line with any notifications received - so the freehold "extract of title" may well be more up-to-date than your lease, regarding the freeholder details.

One important question: Is "this gentleman" actually the freeholder, or just some chancer?
(I'm not joking - this has occasionally happened.)
And, if he is, do the details tally? Maybe he has recently inherited ithe land?
And is he able to prove that he's the freeholder?

With hindsight, it's a great pity that there was no attempt, during this absence, by you and your fellow lessees to purchase the freehold. The First-Tier Tribunal would have assessed a "fair" price, and the money would (I believe) have been put into an escrow account in case of reappearnce of the freeholder, who would thus be deemed to have sold the land and any rights in it.

You first bought one of these properties in 2011, and some were already being rented out.
It's a bit late now, but:
* Are you aware of any of them having received permission?
* Before this recent "reappearance", WHEN is the last time ANYBODY had been in contact with the freeholder? (that you are aware of, or can find out)

If a monetary ground rent is specified, I understand that the freeholder/landlord cannot now claim more that the most recent 6 years' worth of unpaid ground rent.

If there is a new landlord, or the contact address of the landlord changes, then the tenants (lessees in this case) MUST be informed.

Over the years, you and fellow lessees (and the Council!) would have made "all reasonable efforts" to contact him - especially you with your then-proposed conservatory - correct?

If your efforts to seek permission have been frustrated by him or his actions, I fail to see what right he might have to refuse after some 6 years (or more, depending on when you first wanted to seek permission).
Even if a building is erected without planning consent, there is a limitation of 4 years unless the delay is caused or contributed to by the person by or for whom the building was erected.

As for renting out, the freeholder and/or predecessor in title would be ESTOPPED by his/their conduct from now doing anything about the matter - such renting has been happening for more than 9 years without objection.
Do read up on ESTOPPAL (sometimes spelled ESTOPPAL).

Disclaimer: "IANAL"

Prakash Tanna

13:15 PM, 22nd October 2020
About a month ago

Doesn't sound very professional that he is threatening you by text. I would first establish if he really is the Freeholder or not and have somebody professional examine your Lease and the Freehold title. Depending on the arrangement and the other Leaseholders, see if you can collectively enfranchise and buy the Freehold from him and own a share of the Freehold, taking him out of the picture? In the meantime, you need to establish who he is and why he now has crawled out of the woodwork!

terry sullivan

19:10 PM, 22nd October 2020
About a month ago

solicitor should have suggested absent freeholder insurance.

also he may be trying to erect extra floors as pp no longer needed?

David

12:02 PM, 23rd October 2020
About a month ago

Book a call with the Leasehold Advisory Service. Its free and helpful, (or was last time I used them).

Puzzler

9:19 AM, 24th October 2020
About a month ago

Wait until you get something in writing, without that you are whistling into the wind and maybe worrying for nothing.

But do check the lease and title, you should have this anyway. Let us know what they say!

Landlord Phil

14:16 PM, 24th October 2020
About a month ago

There's good advice here. My first thought is that it sounds like it could be a scam. Until something is put in writing, the threat is merely that. Taking advice from professionals would be my route too. My thinking is based on a teaching I received many years ago. Create a defence before you need it. Being prepared is the best way. Even if it's not a scam, I'd imagine your actions to take professional advice on your legal position will put you ahead of the person making these claims. Being steps ahead has always served me well.

BernieW

14:18 PM, 26th October 2020
About 4 weeks ago

Until he provides legal proof of his identity as freeholder, then treat him as an imposter.
If he issues proceedings at Court, you have a myriad of counterclaims - as I don't believe there is no service charge and thus I believe the lease has duties for the freeholder to perform, which he hasn't.
I'm happy to read your lease to check details and advise further, if you wish.


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