New freeholder wants to self contain the basement and stop us using it!

by Readers Question

10:34 AM, 12th September 2016
About 2 years ago

New freeholder wants to self contain the basement and stop us using it!

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New freeholder wants to self contain the basement and stop us using it!

We have RTM of a block of 15 flats. There is a large basement which is marked in our leases as an ‘internal communal area’. Access to the basement is from a door at ground floor level in the communal hallway. There is a small room within the basement where all our meters are kept. basement

Our leases refer to this small room containing the meters as an ‘easement’. Other than this mention of an ‘easement’ to the meter room, our leases do not grant us any rights to the basement. Our old freeholder permitted all the flat owners to use the basement for storage. Our leases were not varied to reflect this use. Our leases do however include a provision for us all to contribute to the repair and maintenance of the basement.

Our new freeholder has just given us notice to remove all of our stored items from the basement. He states that he is not bound by any permission that the old freeholder gave us and he plans to self contain the basement and rent it out to a commercial user as an office. He plans to achieve this by creating another door to the basement (from the outside).

We will then have to share this new door with the commercial user so that we can continue to access our meters. We will not be able to access the rest of the basement though as only the commercial user will be given a key to the rest of the space. The existing door at ground floor level in the communal hallway will also be blocked up.

As a sweetener, our new freeholder has said that once self containment has been done, we will no longer have to contribute to the costs of repairing and maintaining the basement as these costs will be the sole responsibility of the commercial user.

My questions are these:

  • Is there anything that we can do to stop the freeholder self containing the basement in this way. If so, what?
  • Do we have to remove all our stored items as requested? We have been given 6 weeks notice
    If we cannot stop the freeholder from self containing the basement, can we claim compensation for losing our use of the basement?
  • Can we offer to buy the basement from the freeholder?

And before you ask, ‘no’, there is not enough interest to buy the freehold through collective enfranchisement.

Many thanks

Viv



Comments

Steven Burman

12:26 PM, 12th September 2016
About 2 years ago

Viv

You could try speaking to the local planning department as I believe the Freeholder may need 'change of use' for the basement to be used as office accommodation. I may be wrong about this and am happy to be corrected but I think it is worth a try - it could give you some leverage in dealing with the Freeholder.

Ian Narbeth

12:39 PM, 12th September 2016
About 2 years ago

Hi Viv
You say the basement is is "marked in our leases as an ‘internal communal area’". The lease will grant specific rights. The fact that a plan has ‘internal communal area’ on it may not be decisive. What are the rights granted in the body of the lease? If they are just to get to the meters then the freeholder may be able to do what he is proposing.

Without seeing all the papers it is difficult to be definitive but I doubt you can claim compensation. If you could then you could probably carry on using the basement.

Vivienne Somerville

13:17 PM, 12th September 2016
About 2 years ago

Reply to the comment left by "Steven Burman" at "12/09/2016 - 12:26":

Freeholder stated in his notice to us that yes, he would be making a change of use application - which he is confident will be approved since the building was previously 100% commercial before it was converted into flats.

Gary Nock

16:07 PM, 12th September 2016
About 2 years ago

Viv,

Ian is right about the mention of the word "communal" when it describes the basement area. When something is described as "communal" it infers a shared use and the lease needs to be gone through in some detail to ascertain this. And if you have been contributing towards the cost of maintaining the basement then there should be a budget head in the accounts or a schedule in the lease that shows how much money is apportioned from the service charge to pay for day to day repairs and also a "sink fund" for longer term maintainence. If there is money in that you have paid then you are entitled to that money if the Freeholder annexes it to do with as he wishes. The service charge should also reduce. If you have an RTM then if you have a managing agent ask their legal side to have a look. If not an RTMs articles normally allows you to use it's funds for legal matters. Spend £500 for an opinion by a solicitor or barrister on the legality of this.

Puzzler

21:49 PM, 12th September 2016
About 2 years ago

He would have to vary the leases I think, phone LEASE or a specialist solicitor

Steven Burman

10:34 AM, 13th September 2016
About 2 years ago

Reply to the comment left by "Vivienne Somerville" at "12/09/2016 - 13:17":

Viv,

The Freeholder is bound to imply that he is confident - he is not likely to give you any other impression - but the fact that the building was previously commercial does not give him any guarantees. The fact that it was converted and granted change of use to residential implies that it was under utilised as a commercial property and he would have to convince the LA that their is now a demand. Coupled with the fact that the building is now wholly residential I don't think it will be as easy as he is implying. In addition the LA will have to have a consultation period during which objections can be raised.

If you and the other leaseholders are willing to get together and become pro-active and vocal in your objection to the plans then things could become very difficult (and costly) for the Freeholder.

At the very least you need to raise objections to the planning application. You should also be seeking legal advice but I realise this will be costly and requires input from the other leaseholders. Unfortunately apathy often wins in these situations.

Vivienne Somerville

11:18 AM, 13th September 2016
About 2 years ago

Reply to the comment left by "Steven Burman" at "13/09/2016 - 10:34":

We were all set to write our objections to the change of use when someone mentioned that we need to keep him on side (for a while anyway). We have been trying to get him to make deeds of variation to all the leases. He has reminded us that he does not have to agree to them though because the leases are not defective so the variations we want to be made are not mandatory. Is he right? Can he refuse to agree to the deeds of variation?

Ian Narbeth

11:40 AM, 13th September 2016
About 2 years ago

Dear Viv
You need to get some paid-for legal advice urgently. Residential land, RTM companies, variation of leases and the possible (mis)appropriation of communal areas are highly technical legal areas. Without an experienced person reviewing the documents and the plans you will get nowhere. Telling the landlord that people who post on Property 118 think he is wrong won't cut it!
Ian

Gary Nock

13:02 PM, 13th September 2016
About 2 years ago

Viv - Ian is bang on. Although you have a wealth of experience on here it is not a substitute for paid legal advice. Leasehold Law is a minefield. You can go to to the First tier Tribunal if the Freeholder refuses to vary the leases - but you may not have to and the freeholder may not have the legal right to do what he is doing. This is a very complex area you have raised with several facets. If you have an RTM it should have funds. You should be allowed in the Mem and Arts to use those funds for legal matters. If you need to stick £50 on the service charge for it raising £650 for an opinion then it will be worth it. You can also try http://www.lease-advice.org and see what it says on there or speak to one of their advisers - although I think they charge for it now.

Vivienne Somerville

13:17 PM, 13th September 2016
About 2 years ago

Reply to the comment left by "Gary Nock" at "13/09/2016 - 13:02":

I cannot agree more with you and Ian on the matter of getting a legal opinion. The problem is that the RTM Board is not budging on the issue of spending the money. Grrrr

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