New owner of downstairs flat saying I can’t let out property

by Readers Question

22:56 PM, 18th June 2015
About 4 years ago

New owner of downstairs flat saying I can’t let out property

Make Text Bigger
New owner of downstairs flat saying I can’t let out property

I own a 1st floor London flat in a 2 story purpose built maisonette in a residential street where the majority of flats are let out. It is share of freehold with a shared garden. New owner of downstairs flat saying I can't let out property

Recently the ground floor flat was sold and the new owner wanted me to exclude my tenants (4 people) from the garden as he wanted to enjoy sole access. I declined as my tenants have cleary rented my property on the basis that they can use the garden but I suggested he might want to buy it from me. Now he is quoting the lease (“… to keep and use the demised premises and all buildings for the time being standing thereon as a private flat and curtilage only in the occupation of one family and for no other purpose”) and insinuating I cannot let the flat out.

Clearly it was rented when he bought his, he knew this and was happy to proceed. The icing on the cake however is his last comment saying that if I effectively give him the garden he doesn’t mind me renting the flat out. So I guess a form of blackmail.

Anyone got any experience that may help here?

Clearly I am minded now to ensure he never, ever gets sole access to the garden.

Thanks in advance

Colin



Comments

Nick Pope

17:21 PM, 19th June 2015
About 4 years ago

What's a family? These days the term is much more fluid than in the past so 2 adults each with a child by another partner living together would be a family if they co-habit but if they simply live but the adults sleep in separate bedrooms that's probably not a family. Depending on the specifics of the situation the ground floor owner could have problems proving it one way or the other.

I infer from the original post that each of the 2 owners of the maisonettes in the building has a share of the freehold and thus it is a little academic as it is the freeholder which would have to take action to enforce, not the individual ground floor leaseholder as he is a separate legal entity. Consequently the 2 owners of the equal shared in freehold would have to agree to act. Presumably Colin you would not, as a shareholder, agree to take action against yourself so it's a bit of a stalemate.

I'm not sure if the ground floor owner could resort to the law himself to enforce the covenant and even if he could I believe he would need to take action against the freeholder (at his own expense) which creates another odd situation.

On balance I agree that the guy is trying to get exclusive use of the garden (which will probably enhance his value more than it diminishes yours).

Perhaps you could intimate to him that you would consider vetoing any plans for his maisonette which might require freeholder approval such as planning applications etc.

Col Mac

17:33 PM, 19th June 2015
About 4 years ago

Thanks Nick, yes it is SoF and we both own 50%. The veto thing had crossed my mind and I will seek legal advice if he perseveres. I sent him a considered and polite note today expressing bewilderment at him resorting to a type of blackmail in order to get me to do something beneficial for him. Hopefully he will take the hint and normal service will be resumed.

Romain Garcin

17:36 PM, 19th June 2015
About 4 years ago

Even by 'modern' standards I can't see how 4 unrelated sharers could be considered a family.

Nick Pope

17:46 PM, 19th June 2015
About 4 years ago

Reply to the comment left by "Romain Garcin" at "19/06/2015 - 17:36":

Romain - I had posted before Colin confirmed that they are sharers, it was more a comment on the fluid nature of relationships in general and what might be considered a family by a judge if it came to court.

Puzzler

18:56 PM, 19th June 2015
About 4 years ago

There is more than one issue here.

The garden is shared. Do not give that away without valuation and his agreement to pay the costs, you would have to revise the lease for this unless on an unofficial basis. And what happens when these tenants move on? You are minus a garden. What does he mean by exclusive use? Sometimes gardens do belong to the ground floor in such buildings and it may be that he didn't twig that when he bought it. Is he prepared to do the maintenance? Who does it now?

Use of the phrase family is unusual, leases usually say household which can be a bit more fluid.

You have an HMO here (don't panic it's probably not a large HMO and therefore not licensable but you have one) and if you sell the garden you may have issues with condensation from laundry drying indoors etc.

Steve Masters

10:21 AM, 20th June 2015
About 4 years ago

Colin, perhaps your down stairs neighbor is uncomfortable with the idea of your tenants using the garden and looking through the windows into his flat. I could understand that. Perhaps you should have friendly chat with him to find out what is really bothering him. You might find that there is a compromise solution, like erecting some garden screening.

money manager

17:12 PM, 20th June 2015
About 4 years ago

"A house in multiple occupation is a property rented out by at least 3 people who are not from 1 ‘household’ (eg a family)". Admittedly from gov.uk but I think that the property may well not be being used as, nor become by accident, an HMO. Clearly the goverment thinks that "a family" in only one definition of what could constitute a household. I don't think the poster has an issue based on what we have been told.

Neil Robb

17:50 PM, 20th June 2015
About 4 years ago

Hi

Does the new owner intend to stay there himself or rent it eventually.

I would say he wants the garden to extend his property to increase the value of his property.

Why not ask Mark Smith Barrister at law on here and see what he says. He does normally first call free and his fees are reasonable. Look in members profile to find him

Puzzler

17:32 PM, 21st June 2015
About 4 years ago

Reply to the comment left by "money manager" at "20/06/2015 - 17:12":

Well, it depends on the four tenants. It appears not to be one family otherwise the other flat owner would not have an argument, so it is an HMO. The question is therefore what is permitted in the lease (and lender's Ts & Cs). It looks like if that is the case, your current tenancy may be in breach. However he cannot stop you letting to one family or household or two people sharing as individuals.

That said, Nick's post above explains that he can only take action as the freeholder against you as the leaseholder but as you are joint freeholder you can counter it - so stale mate.

Simply tell him it's a shared garden and that's that. If you had only one family in there presumably he would still want the garden? So what would happen when the tenancy changes? Is he going to give up sole access? Just to be on the safe side next time you let it when these go, I suggest you have a family or two sharers only.

Steve's idea is a good one though, maybe you could demarcate areas by agreement (if the garden is big enough)?

Col Mac

14:31 PM, 22nd June 2015
About 4 years ago

Thank you all some useful thoughts and advice there.

1 2 3

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Tenant fees act - Renewal with higher rent £50?

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More