Question 1

Lease Variation

Accepted Answer

Q: A new leaseholder, without permission, has broken through the external wall to install an external water tap and an external electricity box. The latter has been removed and you can see the holes that remain in the brickwork. The Management Company does not wish to allow the tap to remain either as this may cause further flats to break through the external wall to either install taps or other items. We are also aware that external taps can freeze in the winter and cause damage to the property. The full response from the leaseholder is below: "In terms of the tap and the electricity box. The electricity box has now been removed, as although I would have preferred to have it, it is more of a convenience than an essential. However, regards the tap, it is essential in order to maintain the garden. The challenges of the soil quality and the exposed site are already causing me a lot of concerns about what exactly I'm going to be able to plant in the space - I hadn't realised quite how exposed it is (every gust of wind seems to come directly at it) and the soil quality is very, very poor underneath the top soil I have added, so am having to entirely review my planting scheme. I understand I have a right to call a meeting with members of the association to request a license to keep the tap and I would like to action this please. Let me know if you are happy for me to organise or if there is another way you would prefer to sort" Please could you let me know where the Management Company stands with regard to this issue - are we within our rights to ask the leaseholder to remove the tap? The same leaseholder has also taken down a large tree and low level hedging which provided some cover for her in her garden. This was quite within her right to do so. While we would agree to trellising attached to the wall, the leaseholder has requested a fence as follows: "Regards my request for a fence. This is not something I particularly want, am not really a fan of fencing, but I am really struggling with the privacy, noise and light issues. I don't think having a blind down at all times when I'm in the bedroom is a viable solution, but as a single woman living alone I do want to be able to feel I am absolutely not able to be seen. I also think some sort of barrier - fence or trellis with plants grown up it - would dull at least some of the noise slightly. Could you point out where you feel the lease prevents me from erecting one or the other (trellis or fence) in front of the bedroom window?" The Management Company feels that to erect a high fence around the window would detract from the look of that part of the estate and may set a precedence for allowing high fences to be erected in other ground floor flats. We have no objection to a green hedge or any other greenery that adds to the estate being erected. Please see attached the previous email response from the Management Company to the leaseholder Are you able to please advise whether the Management Company has a right to refuse high level fencing? FPRA Legal Adviser Nick Roberts replied (prior to his current appointment): Your leaseholder is correct in saying that the lease contains provisions permitting alterations to be made to the Property with the consent in writing of the Management Company. This is clause 9(a) in the Third Schedule. This also states that consent shall not be unreasonably held. I do not, however, think that inserting an outside tap is technically an alteration to the Property, as defined by the Lease. At this point you need to refer to the definitions on the first page of the specimen lease. The ‘Property’ is the ‘Flat’, and according to the definition of the Flat, it does not include the ‘mains structure of the Building’ (which means all of the outside walls). Work is only an ‘alteration’ if it is to the ‘Property’. Inserting a tap, or affixing a power point to the outside, is work done to the main walls, which belong to the Management Company (which I understand is now the freeholder). The clause relating to alterations is simply irrelevant – what the leaseholder has done is a trespass to a part of the building which belongs to the Management Company. (There is case law which confirms that this is a correct view of the law). Your leaseholder also misunderstands the role that a General Meeting can or should play here, but in order to give you a proper answer I need to have a copy of the Articles of Association of your Company. It would take too much time for me to advise without having sight of the Articles. As regards the erection of the proposed fence, I think that this would count as a ‘hoarding’ and so be prohibited by clause 9(b) of the Third Schedule. If I am wrong on this, then you may have a second line of defence. The picture (No 3) suggests that the window in question is at the front of the building, facing the road. If this is so, then, under the Planning Laws, the erection of a fence more than 1 metre in height in a front garden falls outside the scope of the General Development Order (which exempts minor works from the need for Planning Permission). If this is so, then you can tell the leaseholder that erection of such a fence would, in any event, require planning permission from the Council. Question submitted January 2018

Question 2

Lease Variation

Accepted Answer

Q: A new leaseholder, without permission, has broken through the external wall to install an external water tap and an external electricity box. The latter has been removed and you can see the holes that remain in the brickwork. The Management Company does not wish to allow the tap to remain either as this may cause further flats to break through the external wall to either install taps or other items. We are also aware that external taps can freeze in the winter and cause damage to the property. The full response from the leaseholder is below: "In terms of the tap and the electricity box. The electricity box has now been removed, as although I would have preferred to have it, it is more of a convenience than an essential. However, regards the tap, it is essential in order to maintain the garden. The challenges of the soil quality and the exposed site are already causing me a lot of concerns about what exactly I'm going to be able to plant in the space - I hadn't realised quite how exposed it is (every gust of wind seems to come directly at it) and the soil quality is very, very poor underneath the top soil I have added, so am having to entirely review my planting scheme. I understand I have a right to call a meeting with members of the association to request a license to keep the tap and I would like to action this please. Let me know if you are happy for me to organise or if there is another way you would prefer to sort" Please could you let me know where the Management Company stands with regard to this issue - are we within our rights to ask the leaseholder to remove the tap? The same leaseholder has also taken down a large tree and low level hedging which provided some cover for her in her garden. This was quite within her right to do so. While we would agree to trellising attached to the wall, the leaseholder has requested a fence as follows: "Regards my request for a fence. This is not something I particularly want, am not really a fan of fencing, but I am really struggling with the privacy, noise and light issues. I don't think having a blind down at all times when I'm in the bedroom is a viable solution, but as a single woman living alone I do want to be able to feel I am absolutely not able to be seen. I also think some sort of barrier - fence or trellis with plants grown up it - would dull at least some of the noise slightly. Could you point out where you feel the lease prevents me from erecting one or the other (trellis or fence) in front of the bedroom window?" The Management Company feels that to erect a high fence around the window would detract from the look of that part of the estate and may set a precedence for allowing high fences to be erected in other ground floor flats. We have no objection to a green hedge or any other greenery that adds to the estate being erected. Please see attached the previous email response from the Management Company to the leaseholder Are you able to please advise whether the Management Company has a right to refuse high level fencing? FPRA Legal Adviser Nick Roberts replied (prior to his current appointment): Your leaseholder is correct in saying that the lease contains provisions permitting alterations to be made to the Property with the consent in writing of the Management Company. This is clause 9(a) in the Third Schedule. This also states that consent shall not be unreasonably held. I do not, however, think that inserting an outside tap is technically an alteration to the Property, as defined by the Lease. At this point you need to refer to the definitions on the first page of the specimen lease. The ‘Property’ is the ‘Flat’, and according to the definition of the Flat, it does not include the ‘mains structure of the Building’ (which means all of the outside walls). Work is only an ‘alteration’ if it is to the ‘Property’. Inserting a tap, or affixing a power point to the outside, is work done to the main walls, which belong to the Management Company (which I understand is now the freeholder). The clause relating to alterations is simply irrelevant – what the leaseholder has done is a trespass to a part of the building which belongs to the Management Company. (There is case law which confirms that this is a correct view of the law). Your leaseholder also misunderstands the role that a General Meeting can or should play here, but in order to give you a proper answer I need to have a copy of the Articles of Association of your Company. It would take too much time for me to advise without having sight of the Articles. As regards the erection of the proposed fence, I think that this would count as a ‘hoarding’ and so be prohibited by clause 9(b) of the Third Schedule. If I am wrong on this, then you may have a second line of defence. The picture (No 3) suggests that the window in question is at the front of the building, facing the road. If this is so, then, under the Planning Laws, the erection of a fence more than 1 metre in height in a front garden falls outside the scope of the General Development Order (which exempts minor works from the need for Planning Permission). If this is so, then you can tell the leaseholder that erection of such a fence would, in any event, require planning permission from the Council. Question submitted January 2018

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