A long lease creates important rights and obligations for both long leaseholder and freeholder. Buying a long leasehold interest does not mean you can treat the property in the same way, as of right, as you could if buying a freehold house.
With almost all long flat leases you will still technically need formal permission to make certain types of alterations.
A leaseholder may want to alter the property because they may wish to improve the property or because they wish to carry out more substantial alterations such as a refurbishment to the flat.
Regardless of what changes a leaseholder wishes to make, the exact requirements will depend on the terms of the lease.
For example, a leaseholder may be able to carry out certain cosmetic or minor non-structural alterations without the consent of the Landlord such as painting walls or hanging up paintings on stud walls or their garden area.
On the other hand, structural alterations such as removing partition walls, fitting wooden floors, installing double glazed windows or more substantial works such as loft conversions or dormer extensions are likely to require written landlord’s consent which can be applied for by way of an application to the Landlord for a Licence to Alter.
Consents in a lease are governed by the Landlord and Tenant Act 1927, namely by way of either qualified or absolute covenants. The Landlord and Tenant Act 1927 grants some statutory protection to the Leaseholders where landlords take a protracted amount of time to reply to alteration requests. This will apply in cases where the Lease is silent on these points.
Even when the covenant is absolute there is a procedure set out in Pt I of the Landlord and Tenant Act 1927 under which a tenant can obtain a certificate from the court that the improvement is a proper improvement, something which then entitles him or her to carry out the works notwithstanding any covenant to the contrary.
Depending on the nature of the alterations, a leaseholder may require consent from several parties. In the first instance, (if the lease requires) they will always require prior (written) consent from their landlord. If the contemplated alterations are structural, consent may also be required from the respective parties’ mortgagees and possibly the insurers.
This is all in addition to ensuring the necessary planning and building regulated consents are in place; not only to comply with the terms of the lease but also planning law.
The implications of a leaseholder carrying out unauthorised alterations will depend on the circumstances; but in general terms: -
There will be a breach of the terms of the lease: If consent has not been obtained and the works have been carried out, the landlord could threaten certain legal actions :
threatening or applying to the court for forfeiture of your lease; or
applying to the court for an injunction to stop you carrying out any works; or
seeking damages and costs for any incurred loss; or
demanding the works are reinstated to the Landlord’s reasonable satisfaction;
In addition, there are other consequences such as: -
Potential planning breaches (if the relevant consents have not been obtained). In the event of any planning breach, the local authority has an array of powers to stop the works; seek enforcement action and seek rectification of the position.
Potential building regulation breaches. If alterations are carried out without building control approval or sign-off, then the local authority has numerous options at their disposal which include but not limited to serving an enforcement notice which will force the leaseholder to remove or carry out works to comply with the relevant building regulations or prosecuting the offender in a magistrate’s court for deliberate contraventions of building regulation or refusing to issue a completion certificate confirming compliance which will impact on any future sale of the property or potential invalidation of both the Landlord’s and Leaseholder’s insurance which may affect financing and future property sales.
As a rule, and to avoid any potential future costly disputes, leaseholders should always check their lease to check if there are any pre-conditions such as consent or any fee that needs to be procured from or paid to the relevant authorities before any proposed work is commenced. The consequences of not adhering to this at an early stage could have severe consequences.
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Solicitor - Property disputes
