Freeholder withholding consent for alteration

[bupieker]

  Good afternoon all,

This is my first message on this forum, probably because I am a new homeowner. It came with great joy but I am now facing difficulties already with my freeholder. That was quick.

Here is the issue. 

- My Freeholder, Notting Hill Genesis (NHG), is refusing my internal layout. I am intending to do some alteration in the flat to have an open plan kitchen / living room meaning that the corridor separating the current kitchen and living room will be removed (see attached existing floor plan and proposed floor plan). I precise that these walls are not load bearing walls. NHG Building Surveyor indicates to me that this is not acceptable as the bedroom doors lead to the kitchen. This is true that the doors lead to the open plan however, Building Regulations 2010 make it clear that Emergency Escape Windows are a valid means of escape for flats located on ground and first floor and therefore a protected corridor is not absolutely necessary. My understanding is that since I am on the first floor I would comply with regulations. Here is an extract of Building Regs, Clause 3.16:
"3.16 All habitable rooms (excluding kitchens) should have either of the following. 
a. An emergency escape window or external door, as described in paragraph 3.6. 
b. In multi-storey flats, direct access to a protected internal stairway (minimum REI 30) leading to an exit from the flat."

- I have asked the surveyor to indicate to me which NHG document says that having doors to open plan kitchens is not allowed when escape windows are here. He told me he does not have a document but simply said that Building Regulations are a 'minimum standard'.
- Even though I believe the proposed layout is valid, I proposed another one where I separate the kitchen from the rest of the living room by erecting a wall with a fire door. Bedroom doors would not lead to an open plan kitchen but simply to the living room. He told me this is not acceptable without giving explanations. 

Therefore my questions are the following:
- Does my proposed open plan kitchen layout comply with Building Regulations 2010? Considering I am on the first floor with exit windows on each room. 
- I understand Regs are a 'minimum standard'. Obviously I can do more. Indeed, I proposed to add fire doors while none of the doors in the flat are and the main entrance door is not even self closing. My understanding of 'minimum standard' is that what's written does not need to be applied as such (e.g. I can have 2 escape windows per room if I want to) and that I can do more but that nobody can ask me to do more. How should 'minimal standard' be interpreted? 
- Can they claim this is a 'minimum standard and require me to do more than the standard? Can they force me to go beyond regulations?
- A point on my lease contract.... With regards to alteration, my lease says that "Not to make any alteration or addition of a non structural nature to the interior of the Premises without the previous written consent of the Landlord such consent not to be unreasonably withheld". If I comply with regulations in place in England to date, would that be unreasonable to prevent me from doing this work if I comply with Regs? 

Any comment on the above will be welcomed. 

Thank you in advance for your help!
Pierrick
 

[Olf]

Write to your BC, as they might be involved anyway. If they’re happy and you either can get letter or actual application (if necessary), you get all you need to challenge the ‘unreasonably withheld’ opinion. 

[Dave Jones]

do you own the flat or are you a tenant ?

[bupieker]

I am the leaseholder

[ETC]

It’s too dangerous. Check out BS 5588-1.

[Dave Jones]

as a compromise, a pair of sliding FD60/90 doors

[Stewpot]

I imagine a freeholder of any block of apartments is being extremely cautious since the Grenfell fire - anything that could be construed as contributing to a fire risk will be blocked. It may even be at the insistence of the freeholder's insurance company

[Temp]

If Building Control say its OK they should  allow it.

 

[Gus Potter]

8 hours ago, bupieker said:

  Good afternoon all,

This is my first message on this forum, probably because I am a new homeowner. It came with great joy but I am now facing difficulties already with my freeholder. That was quick.

Here is the issue. 

- My Freeholder, Notting Hill Genesis (NHG), is refusing my internal layout. I am intending to do some alteration in the flat to have an open plan kitchen / living room meaning that the corridor separating the current kitchen and living room will be removed (see attached existing floor plan and proposed floor plan). I precise that these walls are not load bearing walls. NHG Building Surveyor indicates to me that this is not acceptable as the bedroom doors lead to the kitchen. This is true that the doors lead to the open plan however, Building Regulations 2010 make it clear that Emergency Escape Windows are a valid means of escape for flats located on ground and first floor and therefore a protected corridor is not absolutely necessary. My understanding is that since I am on the first floor I would comply with regulations. Here is an extract of Building Regs, Clause 3.16:
"3.16 All habitable rooms (excluding kitchens) should have either of the following. 
a. An emergency escape window or external door, as described in paragraph 3.6. 
b. In multi-storey flats, direct access to a protected internal stairway (minimum REI 30) leading to an exit from the flat."

- I have asked the surveyor to indicate to me which NHG document says that having doors to open plan kitchens is not allowed when escape windows are here. He told me he does not have a document but simply said that Building Regulations are a 'minimum standard'.
- Even though I believe the proposed layout is valid, I proposed another one where I separate the kitchen from the rest of the living room by erecting a wall with a fire door. Bedroom doors would not lead to an open plan kitchen but simply to the living room. He told me this is not acceptable without giving explanations. 

Therefore my questions are the following:
- Does my proposed open plan kitchen layout comply with Building Regulations 2010? Considering I am on the first floor with exit windows on each room. 
- I understand Regs are a 'minimum standard'. Obviously I can do more. Indeed, I proposed to add fire doors while none of the doors in the flat are and the main entrance door is not even self closing. My understanding of 'minimum standard' is that what's written does not need to be applied as such (e.g. I can have 2 escape windows per room if I want to) and that I can do more but that nobody can ask me to do more. How should 'minimal standard' be interpreted? 
- Can they claim this is a 'minimum standard and require me to do more than the standard? Can they force me to go beyond regulations?
- A point on my lease contract.... With regards to alteration, my lease says that "Not to make any alteration or addition of a non structural nature to the interior of the Premises without the previous written consent of the Landlord such consent not to be unreasonably withheld". If I comply with regulations in place in England to date, would that be unreasonable to prevent me from doing this work if I comply with Regs? 

Any comment on the above will be welcomed. 

Thank you in advance for your help!
Pierrick
 

Hello Pierrick.

 

Welcome to Build Hub.

 

Here are a few thoughts.

 

Are you sure the walls you want to take away are "non load bearing". A key thing here is to recognise that although the walls you want to take away may not be carrying any direct vertical load from above they may be providing lateral stability to the walls that are carrying vertical load.

 

For all. If you take a ruler, stand it up on and press down from the top then the ruler bends. Remember how hard you pressed down. Now get someone to hold it steady in the middle and press down again. You'll find that the ruler will take about four times the vertical load. The maths of this can be attributed to the mathematician..Euler.. a pretty famous guy if you are an SE. Now if you look at how many bits of wall are to be removed to form the open plan area you have to ask the question.. are any of these walls contributing to the stability of the vertical load bearing walls?

 

The next thing to do is to look to see if the non load bearing walls are contributing to what we often call the sway stability of the building. When the wind blows for example it pushes the building sideways. This has to be resisted by the walls or structural frame which could be say a steel frame working alone, or a steel frame with stiffening panels between the columns or a brick building with internal stiffening walls.

 

Pierrick I think you need to establish this first. If you don't at some point someone like me is going to ask the same questions.

 

If it turns out that you can demonstrate that your proposals will be structurally safe then you have taken the high ground. This seems like a case where you are in dispute with say a home warranty provider. They partly rely on a war of attrition to grind folk down, hope they run out of money etc..if you get the structural side sorted then you can turn this around..run up their fees and this can concentrate their minds.

 

Once you have the structural stability side sorted then you have the fire regs. Now an SE should be able to deal with this also. If they can show that structurally, even though the walls are "non loadbearing" that they have maintained/ remediated the fire protection between the floors for example.. by say producing drawings that show how they have maintained the fire protection where you have removed the non load bearing walls. In other words when a non load bearing wall is removed it can leave a gap in the ceiling which needs filled in properly.

 

Make sure you can comply with the rest of the regs before paying for an SE.

 

Once you have this SE support in place you can then press then for a proper response.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited August 20, 2021 by Gus Potter

[bupieker]

11 hours ago, Dave Jones said:

as a compromise, a pair of sliding FD60/90 doors

 

 

Thank you for your message

Indeed I have proposed something similar. I proposed to add a wall with a fire door and to 'open' the kitchen by adding a glazed half wall opening (similar to a windows) but with fire rated glass. Their Building Surveyor said no. Without explanation. 

I am speaking to somebody who does not provide constructive comments nor give solutions on how my project will meet their requirements. Indeed, the issue with the first layout was that the bedroom doors lead to the kitchen, I fixed that by proposing something close to your solution but still face a refusal. 

 

What's really annoying is that I requested to which standards or documentation they were refering to make their judgement. He could not refer to any. Should they not be able to indicate me the requirements that should be met and show me the valid document(s) where I could find these?

[bupieker]

10 hours ago, Stewpot said:

I imagine a freeholder of any block of apartments is being extremely cautious since the Grenfell fire - anything that could be construed as contributing to a fire risk will be blocked. It may even be at the insistence of the freeholder's insurance company

 

Thank you for your answer. I completely understand that and I don't want to take excessive risk. But standards are established by experts who provide risk assessments forming part of safety cases that allow them to define whether such or such configuration is allowed. My understanding, and I might be wrong (but BC seems to indicate I am not), is that what I am proposing is fine. Of course we can always have more safety, but this is true for everything. What needs to be considered is whether the risk is mitigated to an acceptable level of risk. 

 

On another note, I discovered some interesting things this morning. I was aware from the previous owner that the flat downstairs (occupying both ground floor and lower ground floor) had important works carried out about 5 years ago. I managed to find the floor plan on internet; you'll understand that I was suprised seeing this

 

[bupieker]

8 hours ago, Gus Potter said:

Hello Pierrick.

 

Welcome to Build Hub.

 

Here are a few thoughts.

 

Are you sure the walls you want to take away are "non load bearing". A key thing here is to recognise that although the walls you want to take away may not be carrying any direct vertical load from above they may be providing lateral stability to the walls that are carrying vertical load.

 

For all. If you take a ruler, stand it up on and press down from the top then the ruler bends. Remember how hard you pressed down. Now get someone to hold it steady in the middle and press down again. You'll find that the ruler will take about four times the vertical load. The maths of this can be attributed to the mathematician..Euler.. a pretty famous guy if you are an SE. Now if you look at how many bits of wall are to be removed to form the open plan area you have to ask the question.. are any of these walls contributing to the stability of the vertical load bearing walls?

 

The next thing to do is to look to see if the non load bearing walls are contributing to what we often call the sway stability of the building. When the wind blows for example it pushes the building sideways. This has to be resisted by the walls or structural frame which could be say a steel frame working alone, or a steel frame with stiffening panels between the columns or a brick building with internal stiffening walls.

 

Pierrick I think you need to establish this first. If you don't at some point someone like me is going to ask the same questions.

 

If it turns out that you can demonstrate that your proposals will be structurally safe then you have taken the high ground. This seems like a case where you are in dispute with say a home warranty provider. They partly rely on a war of attrition to grind folk down, hope they run out of money etc..if you get the structural side sorted then you can turn this around..run up their fees and this can concentrate their minds.

 

Once you have the structural stability side sorted then you have the fire regs. Now an SE should be able to deal with this also. If they can show that structurally, even though the walls are "non loadbearing" that they have maintained/ remediated the fire protection between the floors for example.. by say producing drawings that show how they have maintained the fire protection where you have removed the non load bearing walls. In other words when a non load bearing wall is removed it can leave a gap in the ceiling which needs filled in properly.

 

Make sure you can comply with the rest of the regs before paying for an SE.

 

Once you have this SE support in place you can then press then for a proper response.

 

 

 

 

Thank you Gus!

 

Very valid notes you are mentioning here. I am pretty sure they are not but did not call in the Structural Engineer yet as I wanted to get the proposed layout approved first. I might however follow your advise and get the SE to provide a report to support my claims. 

 

[Temp]

If you had input from an SE and Building Control (and your mortgage Co?) then I think any refusal would be deemed unreasonable.

 

https://www.penningtonslaw.com/expertise/business/real-estate/property-entrepreneurs/property-entrepreneurs-faqs/faqs-dealing-with-tenant-requests-for-alterations-and-assignment

 

What remedies does the tenant have?

Although damages are not available, the tenant has two remedies:

• Self-help: This is where the tenant carries out the improvements.  Firstly, the tenant should send a letter before action to get the landlord’s consent as this avoids problems later.  The tenant should also ask the landlord to confirm that he/she will not peaceably re-enter.  Although this is less risky than on alienation, the tenant may be required to reinstate.
• Court proceedings: This is for a declaration that the landlord has unreasonably withheld consent and/or no further act of consent is required from the landlord.

[Dave Jones]

2 hours ago, bupieker said:

 

 

Thank you for your message

Indeed I have proposed something similar. I proposed to add a wall with a fire door and to 'open' the kitchen by adding a glazed half wall opening (similar to a windows) but with fire rated glass. Their Building Surveyor said no. Without explanation. 

I am speaking to somebody who does not provide constructive comments nor give solutions on how my project will meet their requirements. Indeed, the issue with the first layout was that the bedroom doors lead to the kitchen, I fixed that by proposing something close to your solution but still face a refusal. 

 

What's really annoying is that I requested to which standards or documentation they were refering to make their judgement. He could not refer to any. Should they not be able to indicate me the requirements that should be met and show me the valid document(s) where I could find these?

 

use your own building control, ask them what you need to do to get it signed off. Present the certificate to leaseholder once work is done and its signed off and ask them to enforce against you in court and you will be seeking full legal costs against them.

Edited August 21, 2021 by Dave Jones

[Deejay_2]

I would advise against doing any structural work without the consent of the Freeholder.  If you do, you will breach your lease  and may end up having to forfeit your flat ie they will reclaim it from you.  You own nothing but the right to live in the flat until the end of the lease term - you own neither the flat or the land the building stands on - so basically you are a tenant but with few rights.  You might like to join the National Leasehold Campaign Facebook site - you will be amazed what you discover.  There will be many others on there with Notting Hill Genesis as their freeholder and it might help to ask on the site of others'  experiences in trying to carry out alterations.  Leasehold is a national scandal and if you take the time to read the accounts of people who have been duped by the developers/freeholders/incompetent conveyancers, you will realise just how many thousands of people, particularly young people/first time buyers are now trapped and unable to sell.  

If you are unaware of the above, I think this is something you should bear in mind, other than just complying with Building Regulations.

[markocosic]

I think send a letter that requests confirmation that you are looking at the same version of the lease text, with regards the section of interest, and requests that they provide their reasonable reason(s) for withholding consent that the inadvertently omitted from their previous correspondence.

 

The reason might be "contravenes building regulations"

 

Get the reasons in writing first.

 

You then show that it does not (by asking a professional to say that they're not contravened)

 

And you ask if now that all of their reasonable reasons(s) for refusing have been eliminated they would like to provide consent or if they wish to proceed to challenge the subject matter expert in court.

 

You send it to the moron that you're currently dealing with. You carbon copy it to their head of in house counsel (Christopher Ashplant) with a covering note apologising for this trivia ending up on his desk as a result of minions with ideas above their station.

 

He will probably have a quiet laugh then beat the moron about the head with your letter and remind them not to create work for him / liabilities for NHG...

[Mr Punter]

The current layout has better fire safety than the proposed one.  Currently you can safely escape from any habitable room in the flat.  With your proposal, should a fire break out in the kitchen / lounge you could not escape from the bedrooms without passing through room containing the fire.

[Ferdinand]

On 21/08/2021 at 11:14, Dave Jones said:

 

use your own building control, ask them what you need to do to get it signed off. Present the certificate to leaseholder once work is done and its signed off and ask them to enforce against you in court and you will be seeking full legal costs against them.

 

Don't do that; they will have no option other than to back down and let everyone else walk all over them, or go nuclear - which could end up with them forfeiting your lease.

 

5 hours ago, Deejay_2 said:

I would advise against doing any structural work without the consent of the Freeholder.  If you do, you will breach your lease  and may end up having to forfeit your flat ie they will reclaim it from you.  You own nothing but the right to live in the flat until the end of the lease term - you own neither the flat or the land the building stands on - so basically you are a tenant but with few rights.  You might like to join the National Leasehold Campaign Facebook site - you will be amazed what you discover.  There will be many others on there with Notting Hill Genesis as their freeholder and it might help to ask on the site of others'  experiences in trying to carry out alterations.  Leasehold is a national scandal and if you take the time to read the accounts of people who have been duped by the developers/freeholders/incompetent conveyancers, you will realise just how many thousands of people, particularly young people/first time buyers are now trapped and unable to sell.  

If you are unaware of the above, I think this is something you should bear in mind, other than just complying with Building Regulations.

 

That is sensible. NLC have some successes, as well as some (imo) overambitious aims.

 

You may end up at the Tribunal, if you are determined and they demur.

F