How to stop the freeholder from building another floor on top of our block?

Hi Cathy

I was chatting to the CEO of Cotswold Barristers the other day (Carla Morris-Papps) and she was telling me how excited she was that a new Barrister specialising in property development and related planning issued had joined her chambers.

The Head of Chambers (Mark Smith) is a very active member here and offer Property118 members an initial 15 minute consultation free of charge. Matbe this new barrister will do the same?

They are a Direct Access Chambers which means that you can cut out the middle man and go direct to the specialist, i.e. you don't need a solicitor. It's a bit like going direct to a medical consultant without having to be referred by your GP. The difference of course is that GP's don't charge but solicitors certainly do!

Good luck and please let me know how you get on. From what you've said, it seems to me that you have a very strong case.

My other thought is whether you should offer to sell your flat to the developer, at a premium of course! 😉
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I addition to the issues that you have raised. If you sell you may not be able to raise another mortgage & your current lenders will not give you permission to rent.

This is a not uncommon problem. Part of the answer will depend on the exact wording of your lease (as it does in most legal problems relating to leasehold property.)

As a matter of general law there is nothing to stop a freeholder from adding an additional storey to an existing building, since the freehold includes the airspace above the building.

Most residential leases only include the airspace of each flat and do not include any part of the structure of the building, so a freeholder is entitled to build on to the existing building providing it does not physically intrude into any of the flats.

I note that you have a top-floor flat, so you would need to check whether the lease includes any loft-space above your property - most leases don't, but if yours does the freeholder could not use that space as part of any new building.

It is therefore unlikely you will be able to prevent the freeholder adding another storey on legal grounds.

I assume that you will be objecting to any planning application, but leases do sometimes contain a provision prohibiting a leaseholder from objecting to an appliction by the freeholder.

You will need to put forward valid grounds for your objection – check with your local planning department about the sort of things they will look at when considering objections. Also consider getting advice from a planning expert.

Your lease should contain a “covenant for quiet enjoyment” by the freeholder. However “quiet enjoyment” is a legal phrase meaning that the freeholders (or their agents or employees) must not unreasonably interfere with your right to possession and lawful enjoyment of the flat – but it does not mean that you are entitled to absolute peace and quiet.

So if the freeholders do get planning permission then their builders could erect scaffolding outside the building providing it did not block your access, and they could probably use any shared stairs and access-ways within the building but they could not use any part of your property as access without your consent.

But the covenant does not mean that you can object to reasonable noise etc., from building works – although if it is excessive you might have a nuisance claim.

It might be worthwhile to contact your mortgage lender (if any) as I guess they would want to know in case the value of their security is affected and perhaps they would help with any legal challenge.

HI Tony,
I am not sure if informing the lenders is a good idea in the present climate as they will have a knee jerk reaction which will of course be in their interest, Depend who the lenders are they may want to call their loan.

In so far as the lenders getting involved. I doubt they will, as they do not wish to get involved in Landlord/tenant disputes. What they might end up doing is to not to lend on top floor flats where it could be built.

Hi Shakeel, yes I suspect you are right.
I think this a case where you are damned if you do and damned if you don't - if the lenders find out later they will probably claim there is something in the small print of the mortgage which means they should have been informed.

Cathy,
It's not "greed and profiteering", it's simply a business doing what we all do and that is to ensure we run in profit. If a business makes no profit there is no point in that business continuing trading. We live in a capitalist society and long may it continue. Unless there is a clause in your lease that states that the freeholder can NOT add a further storey above yours you must accept the inevitable. Of course there's no guarantee that planning will be given.