Permission for alterations to a leasehold property frustrations!

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Monday 24 November 2014 5.20pm
Hi all, first time poster here. I'm hoping you can help us. My partner and I bought a flat in Southwark about 3-4 months ago, which needed a lot of work doing to it. We've got a lot of it done now (painting and new floor, yay!) but still need to refit the kitchen and bathroom.

We sent a letter requesting permission to Southwark Council at the start of September, and have heard absolutely nothing back. We're aware there's a backlog but didn't realise it was this bad. What's worse, we sent the letter to 376 Walworth Road (as a PDF on the website instructed us to), but I've just got off the phone with someone at the council who said we need to send it to 153-159 Abbeyfield Road! So our letter may have not ended up where it needs to go!

All we're trying to do is replace like-for-like (new kitchen cabinets and appliances, new bathroom suite), but because the fixtures are the property of the Freeholder (the Council), we're forbidden from replacing them without permission by our lease. We've arranged for a builder to come in December, anticipating that it couldn't possibly take three whole months for them to review such a basic permission request (how naive we were)!

So, what can we do? Is there anyone we can talk to at the Council to see if our request has even ended up at the right place, or been seen? Is it possible to go ahead with the works and get retrospective permission given their enormous backlog? Or do we just have to cancel the works, wait for permission from the council and then hope our builder can fit us in soon after then?

Any help anyone can provide would be very much appreciated, we're at the end of our tether here!
Tuesday 25 November 2014 2.23pm
The presumption is in favour of you being able to carry out such alterations - the clause will say something to the effect of "...such consent shall not be reasonably withheld".

Send a copy of your original letter requesting permission to complaints@southwark.gov.uk (better check that's the right e-mail address!) They should be quite quick in either resolving it or ensuring it is resolved for you. Good luck!

You would probably be all right in proceedings and getting consent retrospectively, but I wouldn't like to chance it. Best to go through the right channels.

You could put an unless provision in your covering letter: "Given that I first wrote to you seeking this permission in September and you have been on notice of same since at least that time, please note that unless I hear from you by such and such a date, I will proceed with the works without further notice".

NB: The onus is on you to make sure that you carry out the works using professional and qualified tradesmen, etc. The council may want to inspect the works post completion.
Wednesday 26 November 2014 6.18pm
Do you have any friends who are solicitors with experience in the law of property? If the preclusion is on removing "fixtures" then I would not expect this to apply to kitchen cabinets etc which are generally regarded as fittings. Fixtures are items of movable plant and machinery which, when installed, effectively become part of the fabric of the building. As such it would generally be seen to include pipeworks, lifts etc. Kitchen cabinets, toilets etc would nt generally be regarded as becoming part of the fabric of the building and not be fixtures.
Wednesday 26 November 2014 8.01pm
Unfortunately, Marcus, with the council as your freeholder that isn't quite right. The Ts and Cs say:

"You do not make any alteration to the property without getting prior written permission. This includes replacing the central heating system, kitchen or bathroom fittings, your windows and/or front door (see Part 6 – Southwark’s leasehold policies."

Further on:

"The lease says that you must ask the council’s permission if you want to make any alteration to your home. This includes things such as changing the bathroom or kitchen fittings, because they are the landlord’s fixtures and fittings – although the lease makes you responsible for looking after them.

"In general we will not refuse permission, provided that what you want to do is done to that part of the premises demised to you, and does not affect the structure of the building..."

This info is taken from the latest version of the lease sample conditions and so may differ in some respects.
Wednesday 26 November 2014 8.27pm
Gavin Smith wrote:
Unfortunately, Marcus, with the council as your freeholder that isn't quite right. The Ts and Cs say:
"You do not make any alteration to the property without getting prior written permission. This includes replacing the central heating system, kitchen or bathroom fittings, your windows and/or front door (see Part 6 – Southwark’s leasehold policies."

Further on:

"The lease says that you must ask the council’s permission if you want to make any alteration to your home. This includes things such as changing the bathroom or kitchen fittings, because they are the landlord’s fixtures and fittings – although the lease makes you responsible for looking after them.

"In general we will not refuse permission, provided that what you want to do is done to that part of the premises demised to you, and does not affect the structure of the building..."

This info is taken from the latest version of the lease sample conditions and so may differ in some respects.

That's an advisory guide - the leasehlders have been granted a 125 year lease. The person who wrote the guide is an idiot who believes that all bathroom and kitchen fittings are the property of the freeholder (ie the council). This is only correct to the extent that they become an integral part of the property.
Wednesday 26 November 2014 8.34pm
No, it isn't. It depends what formed part of the demise.

Read clause 7 of the lease:

"(7)Not to make any structural alterations or structural additions to the Property or remove any of the Landlord's fixtures and fittings without the previous consent in writing of the Landlord."

If they say it's theirs then it is theirs and doesn't form part of the demise. Refer to my earlier answer!
Wednesday 26 November 2014 9.05pm
Gavin Smith wrote:
No, it isn't. It depends what formed part of the demise.
Read clause 7 of the lease:

"(7)Not to make any structural alterations or structural additions to the Property or remove any of the Landlord's fixtures and fittings without the previous consent in writing of the Landlord."

If they say it's theirs then it is theirs and doesn't form part of the demise. Refer to my earlier answer!

I don't have a copy of the relevant lease and given that it is likely to be for a term of 125 years, such a covenant is likely to be uneforceable given the confirmed applicability of the Unfair Contract Terms Regulations to property contracts. It's a question of fairness not whether it's written in the lease, per se. The landlord has no interest in fittings which will not survive the lease nor does it have any reasonable financial interest in the reversion which could be impacted by such items.

A quick chat with an unpaid lawyer friend would likely be more productive than waiting on unqualified council staff to rabbit back their guidance.
Wednesday 26 November 2014 9.18pm
We're at danger of getting off subject here, Marcus, but the point of the matter is the lease says one thing and so quite obviously the landlord does have an interest in such items, otherwise it would not have saw fit to include it.

UCTA and its consequent/subsequent regulations wouldn't bite here; of that I'm quite sure. The catch-all phrase is: "such consent will not be unreasonably withheld". There is nothing unfair about that.

"A quick chat with an unpaid lawyer friend" assumes that the OP has such a friend. Second, given that the OP wants to comply with the terms of their lease - a condition of which (however silly it is) is that they seek the freeholder's consent - such a "friend" is not going to be in a position to give that consent.

I'd suggest that to avoid protracted correspondence/difficulties, the OP does indeed wait/chase "unqualified council staff" to ensure they comply with their lease provisions or, at the very least, put the matter on "unless" terms, as I originally suggested.
Wednesday 26 November 2014 9.49pm
Your "unless" terms will not bless any breach of the lease as if the consent is required, you cannot assume it away irrespective of what period of time you leave for them to respond - this I have had advice on from 3 different city law firms and 2 QCs. Taking advice on the effectiveness of the covenants is better advice than to breach them without such consideration!
Wednesday 26 November 2014 10.03pm
Wow, you're speedy!

MarcusM wrote:
I don't have a copy of the relevant lease and given that it is likely to be for a term of 125 years...

Three different city law firms and two silks at this time of night, all without a copy of the "relevant lease". On what basis did they advise you without the "relevant lease"? Now you're talking out of the proverbial! I don't know what sort of experience you talk from and don't want to rubbish it, but I find it incredulous and think you're trying to "point score".

At first you submit that the terms of the lease don't bite as they're unreasonable and, if I'm reading your response right, you now you seem to concede that they might.

Of course, if you are right and they unenforceable as a consequence of being unfair contract terms - and I don't for one second agree that you are - then the "unless" option I suggested as one tentative way forward would do no harm.

I revert to my original suggestion: "Best to go through the right channels". In other words, seek the consent of the freeholder.
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