If you own a leasehold flat or apartment and are thinking about making alterations to your home, it’s important to find out whether you need to obtain permission from the freeholder of the building, who may otherwise be known as the landlord. Failure to gain consent for alterations will likely mean that you breach the terms of your lease. In which case, you can be legally forced to pay a hefty fine, return the property back to its original state, or in some severe circumstances forfeit your lease and ultimately lose your home.
As the owner of a leasehold flat, you are responsible for the demised premises as stated in your lease. This usually includes the surface of the interior walls, the ceiling above, and the joists below. The freeholder on the other hand will own the building’s structure including the external walls, roof, and common areas. Therefore, any alterations that will affect the building’s structure will usually require permission from the landlord.
To determine whether you need to obtain permission for your proposed alterations, you will need to carefully read the terms of your lease. The lease will not only state the specifics of your demised premises but should also contain any covenants requiring you to seek the freeholder’s permission for certain alterations and improvements to your home. This can include everything from major structural changes such as extensions and loft conversions to installing wooden floors, a new kitchen, or windows.
It is essential to highlight here that even if you have access to an area such as a private garden or loft space, it does not necessarily give you any legal rights over it. Therefore, it is critical to read the terms of your lease and obtain permission from the freeholder if you are required to do so, before proceeding with any alterations.
If the area that you wish to make alterations to does not form part of your demised premises or if the lease prohibits alterations entirely, you will need to apply for and purchase a modified or an additional lease which includes the space and/or permission to conduct alterations. This is known as a Deed of Variation to your lease and will require your landlord to employ a solicitor to prepare the legal documentation, the costs for which will be passed on to you as the leaseholder.
How to obtain consent for alterations from the freeholder
In theory, a leaseholder should not have any difficulty in obtaining consent from the freeholder for alterations to their flat, provided they fall within their demised premises. This is because Section 19 of the Landlord and Tenant Act 1927 implies that freeholders are not allowed to unreasonably withhold consent for alterations, and this will be stated in most leases.
Consent from your freehold landlord is obtained in the form of a licence to alter. This is a formal, written document that grants permission for the alterations to take place together with requirements for how and to what level of quality the alterations must be carried out. It will also ensure that all parties potentially affected by the alterations are protected.
The licence to alter is also likely to give the freeholder permission to inspect the alterations in order to ensure that they have been carried out in accordance with the terms of the licence, that they do not void any warranties, and that they meet current legislation, building regulations and insurance requirements. Freeholders may also require you to pay a deposit that would be used in the event that the alterations cause damage to the building or flats within.
Before your freehold landlord grants the licence to alter, they will want to know that the alterations will not affect the structure, integrity, stability, or safety of the building. Furthermore, if the freeholder believes that any of the alterations will affect the value of the building, they are likely to withhold consent.
However, if the proposed alterations are for an area of the freeholder’s retained property, the landlord is not obliged to grant consent, and the implied term not to unreasonably withhold consent does not apply. As a result, if you wish to make any alterations to your freeholder’s retained property, they are likely to ask you to pay a premium in return for a licence to alter.
How much will a licence to alter cost?
If you are seeking to make alterations to your demised premises, your freehold landlord should not charge you a premium in return for consent, as this would be deemed an unreasonable refusal of consent. Conversely, when alterations are proposed for the freeholder’s demised property, he is likely to request a premium plus funds to cover his costs. These costs can include solicitors’ fees for drawing up a formal licence, surveyor’s fees for checking the proposed plans, and the completed alterations together with general administration charges.
Although there is no restriction on the amount a freeholder can request for the alterations to take place, under Section 11 of the Commonhold and Leasehold Reform Act 2002, all charges should be reasonable. Bear in mind that legal and surveyor fees can be costly and will depend on the scale of the alterations, so expect for these costs to reach thousands of pounds.
Contacting your freehold landlord
It is imperative that you seek to contact your freehold landlord when making any alterations to either your demise or your freeholder’s retained property, or risk forfeiture of your lease. To protect yourself against this, you must be able to prove that you made every effort to contact your freehold landlord in order to obtain consent and/or that consent has been unreasonably withheld.
To find your freeholder’s contact details, first, check to see if you have received any correspondence from them. Under Section 48 of the Landlord and Tenant Act 1987, freehold landlords must by law provide leaseholders with their contact details, which includes an address in England and Wales. Their name and address must also be provided on service charge and ground rent demands.
If you have an absent freeholder or do not hold any contact details for your freehold landlord, your next point of call should be Land Registry. This website holds property ownership information, and for a small fee, you can obtain the details that you need. If no results are found, you may be able to employ a tracing agent either directly or via your solicitor.
Other permissions required
If the alterations that you wish to make involve major structural changes to the building, you may be required to seek both planning permission and building regulations approval. Planning permission is likely to be required for extensions and new build structures, whereas building regulations approval may be required for anything from a loft conversion to new windows. Both permissions can be obtained from your local authority.
Where your flat or apartment resides inside a listed building, you may also require listed building consent. Listed buildings are protected against any alterations that will change the structure or appearance of the building, so any alterations will require prior consent even if they do not require planning permission.
Consent may also have to be obtained from your mortgage lender before carrying out alterations depending on the terms of your mortgage. And finally, your lease may stipulate that consent for alterations must also be obtained from the other leaseholders in the building as well as from your landlord.
What can happen if you fail to obtain consent for alterations?
If you fail to gain consent from your landlord and proceed with alterations anyway, you will be in breach of your lease. Similarly, if you fail to obtain planning permission or building regulations approval from your local authority you will have committed a planning breach. In either case, there are several actions that can be taken which will negatively affect you.
Your freehold landlord can take out an injunction against you which will stop you from carrying out the works, force you to reinstate the property, and demand that you pay the freeholder damages. As mentioned earlier, you could also be forced to forfeit the lease for your property which will result in losing your home. However, this usually only happens in extreme circumstances where the alterations are substantial.
When you fail to obtain planning permission or adhere to the conditions of the permission, your local authority can also take out an injunction or issue an enforcement notice requiring you to put the building back to the way it was. However, you may also be permitted to submit a planning application retrospectively in order to gain approval. Complete failure to comply with these legal requirements can result in a hefty fine.
It’s also important to note that failure to gain consent for alterations from either the freeholder or your local authority can affect your ability to sell your home. This is because your buyer’s solicitors will demand to see proof that the alterations were carried out with the freeholder’s consent and to the correct standards.
What if the freeholder wishes to make alterations to your property?
If the freeholder wishes to make alterations to your demised premises, such as a loft conversion in which you own the space, you have the ability to either refuse or grant consent. It is advisable to seek advice from an experienced solicitor who specialises in property matters if you find yourself in this situation.
