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Alterations to a flat with the consent of the freeholder (if the lease stipulates that such permission is required) means that the freeholder issues a license to alter which then becomes part of the title deeds. There are no legal guidelines as to what the freeholder can charge and if it is later discovered that alterations were made that required the consent of the freeholder which was neither sought nor granted then the freeholder can insist on a retroactive licence during the conveyancing process. Again, there are no legal guidelines on what can be charged.

The most common requests for alterations to flats are:

  1. Works to the structure such as the cutting through of walls, or the removal of either the whole or part of any wall;
  2. The adding of a wall or a partition;
  3. The installation of new heating or alternative service installations;
  4. Additional windows (not replacements);
  5. Changing windows;
  6. Additional doors (not replacements)
  7. A skylight insertion;
  8. Installation of a new kitchen, bathroom, toilet, shower etc (which is likely to increase the amount of waste water/sewage being removed from the flat);
  9. Modification to communal services such as the re-routing of a radiator attached to a communal heating system.

If the leaseholder wants to carry out minor modernisation work, such as internal decorations, consent will not usually be required and if the lease is silent on alterations (highly unlikely) then the tenant is free to carry out the alterations as he/she chooses.

For houses, such alterations could be:

  1. The addition of a conservatory;
  2. Extension work to the building;
  3. A loft conversion;
  4. The extension or creation of a driveway;
  5. Any radical change of the land attached to the freehold (including the construction of new buildings on the land or radical landscaping).

Some work will need planning permission and building regulation approval and others will not. For example, planning permission might not be required for a house because some types of extensions/loft conversions are considered to be ‘permitted developments’. Permitted development rights however do not apply to blocks of flats, although if there are no plans to alter the external appearance, or change the use of the building, planning permissions would probably not be required.

However, nearly all building work and structural alterations need building regulations approval to ensure they meet the minimum standard of the national building regulations.

PROTOCOL FOR APPLICATION FOR CONSENT TO CARRY OUT ALTERATIONS

The Protocol for Applications for Consent to Carry Out Alterations (the Alterations Protocol) is designed to ensure that leaseholders and freeholders exchange information in such as way as to minimise claims, reduce financial burdens for both parties, and reduce the scope for disputes between them and, should they arise, enable them to be resolved as easily as possible.

Leaseholders seeking permission to carry out alterations are usually subjected to alteration clauses within their lease of which there are usually one of three (or a mix).

They are:

  1. An absolute covenant which completely prevents the alteration and the leaseholder will only be able to make alterations if the landlord is prepared to waive the clause;
  2. A qualified covenant which prevents alterations except with the landlord’s consent;
  3. A fully qualified covenant which allows the alteration with the landlord’s consent, which the clause specifies, must not be unreasonably withheld.

All freeholders who receives an application for alterations are bound by legislation to a) give consent and not unreasonably withhold it (except where it is reasonable not to), b) give written notice to the tenant advising whether consent is to be granted along with any conditions (which in turn must be reasonable) and c) if consent is not granted, then reasons as to why.

These responses must be undertaken within a reasonable period of time.

Note: Legislation such as the Landlord and Tenant Acts of 1927 and 1954 provide that where alterations are necessary to comply with statute, consent cannot be withheld.

PROCESS

When a Licence to Alter is required, the leaseholder must provide an undertaking that all works will comply with all relevant statutes, planning consent, bye-laws, building regulations and good working practices for which the burden of proof will usually be on the landlord to show the duties have been complied with.

The steps for applying for a License to Alter are as follows:

  1. The leaseholder will submit the drawings and calculations for the proposed works to the freeholder;
  2. The freeholder will send the plans to be reviewed by a their own surveyor to review and determine whether a Licence to Alter is required;
  3. If a Licence to Alter is required then the surveyor will come back to the leaseholder and require further details of the project such as reference to the ‘As Built’ drawings along with full specifications to ensure their accuracy and to avoid any dispute on expiry of the lease;
  4. The surveyor will then visit the property to see the plans in context and review the effect this work may have on any joined or adjacent properties;
  5. The surveyor will then report back to the freeholder and advise that the Licence to Alter is written up by a qualified solicitor which will normally be prepared by the freeholder’s solicitor;
  6. This will then be issued to the leaseholder’s professional team and the leaseholder for approval and signatures;
  7. The leaseholder will pay for the Licence which then become part of the Title Deeds.

Any further changes by the leaseholders will require either an addendum to the original licence, or a new Licence to Alter drawn up.

Subject to the lease terms, it is normal to have a reinstatement clause, whereby the tenant has an obligation to reinstate their property to how it was prior to occupation. All works would be at the leaseholder’s own cost.

However, the freeholder has the right to object and compel the leaseholder to either reverse the changes or demand financial compensation but when a property is put on the market and consent was neither sought or granted, it is not only a breach of the lease but the changes will not appear on the title deeds.
This means that new buyers are effectively held to ransom in order to obtain retrospective consent and to enable the sale to move forward. There are no statutory guidelines in this (and many other) areas so buyers may well end up paying well above the odds!

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