Absent Feeholder/Landlord Licence to build on his land

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Absent Feeholder/Landlord Licence to build on his land

Postby cicone75 » Sat Aug 01, 2015 8:43 pm

Hello, I would like to seek permission to build on our freeholders land which is directly in front of my ground floor flat. To give some background, we have lived in this ground floor flat for nearly 10 years and when we brought the flat the landlord/freeholder was absent and we received no reply from the last known address. From looking through the freeholders title and the leaseholder's it would appear that the land belongs to the freehold and does not form part of the common parts. Directly in front of the land is a single storey estate agent which the freeholder sold some time ago with the right to affix electric meters to the wall which backs their office and looks onto the land in question. I would like to seek permission to build on this land, but not all of it, and glass conservatory. As the landlord is absent not replying to letters nor collecting ground rent or managing the property in any way, I want to know how I can seek permission to build. Should I just send a letter to his last known address and then if he does not reply claim that he is withdrawing his permission unfairly ?

Thanks for any help you can give.
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby MacadamB53 » Sat Aug 01, 2015 9:27 pm

Hi,

if the land isn't included in the lease then you're in precisely the same position as the rest of us - ie you have no right to build on it.

imagine if the freehold was made up of a number of separate, isolated parcels - are you suggesting that if this was the case you ought to be able to build on any one of them simply because you are leasing some of his land?

however, having said all that, if you are certain the landlord is never going to show up why not just treat the land as if it were included in the lease - just plead innocent if you've guessed wrong...

Kind regards, Mac
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby cicone75 » Sun Aug 02, 2015 2:35 pm

Thank you for your feedback. I understand that I can't just build on land that is not mine but how do you legally apply to build if the landlord doesn't reply. I have been looking after this land for 10 years and it the main reason for the land is to give me daylight, so no one can build on it apart from me otherwise it would block my light and air. If we were to buy the freehold of the property with the other leaseholders, would this piece of land be included in this as it doesn't form part of the common parts nor any of the leaseholders' leases.
Thanks
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby jdfi » Sun Aug 02, 2015 2:42 pm

Get a trusted relative to fence this land off.

Is your freeholder a person or a company?
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby cicone75 » Sun Aug 02, 2015 7:06 pm

hi ,it's a person. The land is a courtyard so doesn't need fencing off. Part of it is common part because it has the electric meters there so i would need to keep that part free for the other leaseholders to pass over.
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby MacadamB53 » Sun Aug 02, 2015 8:07 pm

Hi cicone,

just build the damn conservatory and if the landlord rocks up just apologise for the confusion.
the only other permission you might need is planning permission - you don't need to own the land to apply for and gain planning permission.

Kind regards, Mac
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby jonahinoz » Sun Oct 25, 2015 10:13 am

<<< As the landlord is absent not replying to letters nor collecting ground rent or managing the property in any way, >>>

Hi Cicone,

Do you mean that the Freeholder is not knocking on your door asking for his ground rent? Or that cheques are not being presented, or are being returned?

What are the Adverse Possession rules in a case like that? Are their any other implications? Who pays for the buildings insurance, and how?

John W
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby ukmicky » Wed Oct 28, 2015 4:18 pm

If you want to build on it , I assume you then want the finished conservatory to be yours and part of your leasehold. If so read below.

1. You will not unless you can gain adverse possession have any rights over it without the freeholder agreeing and changing your lease to include this land.

2. Adverse possession wise as your property is ultimately owned by the freeholder you would be claiming on behalf of him not yourself and if gained the land has to be surrendered to him when the lease expires. The land would also become subject to the terms of the current lease once gained.

To gain it you will have to fulfil the current conditions for adverse possession which I doubt you can fulfil as it is left open and others currently use it . You also have to take into account its a lot harder these days to gain property through adverse possession, however with an absent freeholder you could get lucky.

3. You then have to consider the terms of your lease and any covenants to do with alterations in it, because without the freeholders permission you could if you break the terms of your lease be sued for damages and served with a 146 notice and then in a worse case scenario if the breech is not remedied he may be able to sue for forfeiture of your lease. Forfeiture is a very complicated area of the law which I do not have a great deal of knowledge about but it is something you have to consider.

4.Should you build on it without this area of land being added to your lease you could be left with a property that would be unsellable as any solicitor acting on behalf of a potential buyer should warn them not to purchase unless things were tidied up legally. You wouldn't want to purchase a property with the knowledge you may not own part of the building. Any mortgage company would also shy away from providing a mortgage on the property in such circumstances.


I'm not sure how the law would view it and I could be wrong but in theory you could also commit a criminal offence If you built a conservatory on it before you legally had any rights over it . You would be squatting in a residential property (the conservatory part )because the conservatory attached to your house would be classed as residential. That would be illegal .


Lots of things to think about, sorry about that.
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby Collaborate » Wed Oct 28, 2015 7:55 pm

ukmicky wrote:If you want to build on it , I assume you then want the finished conservatory to be yours and part of your leasehold. If so read below.

1. You will not unless you can gain adverse possession have any rights over it without the freeholder agreeing and changing your lease to include this land.

2. Adverse possession wise as your property is ultimately owned by the freeholder you would be claiming on behalf of him not yourself and if gained the land has to be surrendered to him when the lease expires. The land would also become subject to the terms of the current lease once gained.

To gain it you will have to fulfil the current conditions for adverse possession which I doubt you can fulfil as it is left open and others currently use it . You also have to take into account its a lot harder these days to gain property through adverse possession, however with an absent freeholder you could get lucky.

3. You then have to consider the terms of your lease and any covenants to do with alterations in it, because without the freeholders permission you could if you break the terms of your lease be sued for damages and served with a 146 notice and then in a worse case scenario if the breech is not remedied he may be able to sue for forfeiture of your lease. Forfeiture is a very complicated area of the law which I do not have a great deal of knowledge about but it is something you have to consider.

4.Should you build on it without this area of land being added to your lease you could be left with a property that would be unsellable as any solicitor acting on behalf of a potential buyer should warn them not to purchase unless things were tidied up legally. You wouldn't want to purchase a property with the knowledge you may not own part of the building. Any mortgage company would also shy away from providing a mortgage on the property in such circumstances.


I'm not sure how the law would view it and I could be wrong but in theory you could also commit a criminal offence If you built a conservatory on it before you legally had any rights over it . You would be squatting in a residential property (the conservatory part )because the conservatory attached to your house would be classed as residential. That would be illegal .


Lots of things to think about, sorry about that.


I agree with para 1 but not the rest.

You would only acquire a leasehold interest in the new land if the current owner of the land also has just a leasehold interest. You would be in the curious state of owning an apartment leasehold with a freehold conservatory. Perfectly doable. It wouldn't be a criminal offence, as it's not residential until you've finished your build, and before then you will have appropriated the land and your 12 years occupation would have started to run.

Personally, I wouldn't do it unless you're absolutely sure that there's no one who's going to be challenging you.
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby ukmicky » Wed Oct 28, 2015 8:54 pm

Collaborate wrote:
ukmicky wrote:If you want to build on it , I assume you then want the finished conservatory to be yours and part of your leasehold. If so read below.

1. You will not unless you can gain adverse possession have any rights over it without the freeholder agreeing and changing your lease to include this land.

2. Adverse possession wise as your property is ultimately owned by the freeholder you would be claiming on behalf of him not yourself and if gained the land has to be surrendered to him when the lease expires. The land would also become subject to the terms of the current lease once gained.

To gain it you will have to fulfil the current conditions for adverse possession which I doubt you can fulfil as it is left open and others currently use it . You also have to take into account its a lot harder these days to gain property through adverse possession, however with an absent freeholder you could get lucky.

3. You then have to consider the terms of your lease and any covenants to do with alterations in it, because without the freeholders permission you could if you break the terms of your lease be sued for damages and served with a 146 notice and then in a worse case scenario if the breech is not remedied he may be able to sue for forfeiture of your lease. Forfeiture is a very complicated area of the law which I do not have a great deal of knowledge about but it is something you have to consider.

4.Should you build on it without this area of land being added to your lease you could be left with a property that would be unsellable as any solicitor acting on behalf of a potential buyer should warn them not to purchase unless things were tidied up legally. You wouldn't want to purchase a property with the knowledge you may not own part of the building. Any mortgage company would also shy away from providing a mortgage on the property in such circumstances.


I'm not sure how the law would view it and I could be wrong but in theory you could also commit a criminal offence If you built a conservatory on it before you legally had any rights over it . You would be squatting in a residential property (the conservatory part )because the conservatory attached to your house would be classed as residential. That would be illegal .


Lots of things to think about, sorry about that.


I agree with para 1 but not the rest.

You would only acquire a leasehold interest in the new land if the current owner of the land also has just a leasehold interest. You would be in the curious state of owning an apartment leasehold with a freehold conservatory. Perfectly doable. It wouldn't be a criminal offence, as it's not residential until you've finished your build, and before then you will have appropriated the land and your 12 years occupation would have started to run.

Personally, I wouldn't do it unless you're absolutely sure that there's no one who's going to be challenging you.


Sorry but your totally wrong .

You cant gain the freehold title to land through adverse possession if the land you are adverse possessing is owned by your freeholder and the access and the benefit gained is as a direct result of the lease .

The most the law allows for is a propriety right that lasts as long as the original lease. The moment the lease expires so does and the right . The right also once gained comes under the same terms and conditions as the original lease which allowed the right to be gained.
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby ukmicky » Wed Oct 28, 2015 9:36 pm

Smirk -v- Lyndale Developments Ltd [1975] Ch 321; [1975] 1 All ER 690
Sir John Pennycuick

The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held:

The cases demonstrated that "the law has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease
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Re: Absent Feeholder/Landlord Licence to build on his land

Postby Collaborate » Wed Oct 28, 2015 11:48 pm

In that case I withdraw the comments above. OP can gain a leasehold extension by AP.
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