Leaseholder and freeholder dispute

[Feebs7]

Hi,

We have a dispute with out co leaseholder/freeholder neighbour regarding ownership of an area under the stairs

Our lease says it's in our demise, with some smudgey writing over the stairs area.

Thinking it belonged to us, we added an opening into the wall so it could be accessed from inside our flat.

Previously it was only accessible by a key from a shared pathway outside the building, by the freeholder neighbour.

We do not know if our flat had a copy of this key, if it was lost, and the neighbour tried to seize it for his sole use.

As our neighbour is taking legal action and wanting massive compensation we got advice from a couple of solicitors who told our lease is unclear.

however our freeholder neighbour still maintains his lease is very clear.

His lease does have more information about it, than ours, but still not that clear, and it's not in our lease. Also we didn't see it till after we accessed the cupboard.

My main questions are:

Who is qualified to categorically state that our lease is unclear, demonstrating our actions was based on an unclear lease.

What should we do?

Sorry, yes I realized the explanation about her solicitor sounded slightly confused.

Before mum made a hole in the wall to gain access, she emailed her conveyancing solicitor, to confirm the area was hers.

He didn't respond.

She then phoned him to follow up on her email, and he said he'd get her lease and look into it. He came back to her in a phonecall and said it was hers.....

She then put the hole in the wall....

Then years later the neighbour sends her a legal letter threatening litigation...

Mum goes back to her conveyancing solicitor to tell him her neighbour is taking court action..

He says he needs all the leases. Mum gives him neighbours lease.

His assistant reviews the lease, and tells mum it's a bit unclear but the ground floor appears to all be hers.

The next day her conveyancer retracts his assistants email, saying the area is the freeholders.

Shouldn't her conveyancer who is sra registered, have inspected all the overlying lease/freehold for mum when she bought her place? Then picked up on this unclear area under the stairs?

We think If mum just put it back, he would still seek the compensation amount that he has asked for.

He wants the area back AND loads of money.

I'm trying to think what legal process the neighbour ( who is the freeholder ?) would use ?
He's after compensation ? Would it be a small claims court? Has the freeholder said?
My thinking is that just because he asks for massive compensation ( OP do you know the figure ) doesn't mean he'd be granted whatever sum he wants.
I think he'd be seen as having a successful case but surely he'd need to provide evidence to support whatever sum he was claiming for ?

Compensation for what though? I doubt very much anyone is going to award him loads of money for a cupboard that has been returned to its previous condition.

If mum put cupboard back, would that be an admittance that she has breached her lease?

If there's a breach in the lease, wouldn't the freeholder have grounds to claim compensation in a leasehold tribunal?

Perhaps if we put the cupboard back, but make it clear that mums actions were due to what she thought was an unclear lease and bad advice from her conveyancer.
But that she would concede the cupboard was the freeholders IF the freeholder took no further action?

does her home insurance include legal advice, or her bank account?

Why do you think the conveyancing solicitor should have read the neighbour's lease? Some blocks have hundred of flats in them. Do you think when someone buys one flat, their conveyancer buys a copy of the other 99 leases from the land registry and reads all of them?

I think mums conveyancer should have at least offered mum the option of checking the other lease. It's just 2 leases, within a converted house - the other being owned by the freeholder.

I have had a solicitor myself, check 4 leases as in a Victorian house conversion, as I wanted to buy 1 of the flats.

My solicitor noted that the other 3 leases had brand new identical leases with the freeholder.

The lease I was interested in buying had an old lease, which had completely different terms....like the foundations and structure being in its demise, whereas the other flats had structure as shared responsibility.

My solicitor advised me to walk away from the purchase - unless I wanted to spend time and money updating the lease.

Also sorting out the massive damp problem in the structure....which had been ignored because of the issue with conflicting leases....

I did think about this, but at the moment I think mums contents insurance lapsed as she temporarily let it out to some friends.

Also, I'm not sure legal advice is possible once you've already taken legal action....

But it's something we should look into..

You said she knocked through before taking advice from her solicitor. She therefore did not act on his advice.

Seeking legal advice is absolutely possible even if you've already taken 'legal steps'. You / your mum need to engage a property litigation lawyer who can guide you through the next steps. Sounds like if your mum can arrange for the cupboard to be professionally returned to the state it was in previously, she'll be able to minimise the damages (compensation) the neighbour will be able to claim.

Has your mum tried communicating with the freeholder, apologising for the mistake and explaining that she will reinstate the cupboard?

I said she knocked through the wall after a phonecall from her conveyancing solicitor assuring her it was hers.

I still wonder what legal process the freeholder might use .
I've looked v v quickly here
https://www.gov.uk/leasehold-property/leasehold-disputes
I'm thinking that the freeholder might ask the tribunal to consider that she's breached her lease and wants possession of the flat .
But I just can't imagine that a tribunal would go straight to agreeing this over such a trivial matter.
I'm sure they would want mediation as a first step and I know that small claims courts suggest mediation as a first step.

Look. Simply just brick it up and cease using it. That takes away part of the reason for court.
The freeholder then can decide if he wants to sue for compensation. The courts in England won't award vast sums of money for things like US, he would need to show losses etc.
Any solicitor would cost him money and likely this would be a small claims court type issue and it therefore wouldn't have unlimited costs.
The best thing she can do is put the situation back with no access from her flat as having restored the original status quo means his court action is less meaningful.

We got our solicitor to inform the freeholder mums been very ill.

We also asked him if he would he be open to selling it her.

Or if not and he still wants her to put it back can he update the leases and cover the costs.

He rejected both offers. Said if she puts it back no need to update the leases.

He still wants the cupboard and also asked for a reduced compensation amount....based on loss of rental for a storage unit

Yes, I'm in the process of getting a solicitor experienced in leasehold disputes.

She says mediation only possible if both parties agree.

There cannot be any admittance that mum breached the lease, as she did it due to advice from her conveyancing solicitor and lack of information in her own lease.

And it's still not absolutely clear in the neighbours lease that the cupboard is his.

Nothing is really clear cut I'm terms of ownership.

Only that the area under the stairs is more likely to be the neighbours as he'd been using it before she took over.

Buy, he might argue she took adverse rights.

Perhaps if she puts the cupboard back to how it was, some of the issues might go away.

I think we need a better solicitor experienced in leasehold law before acting....

The solicitor mum chose is not a leasehold or property dispute solicitor and doesn't give mum any advice on anything much.

He wants expert counsel advice from a barrister who can advise on the outcome of it went to court, and also advise one what mum should do.

Honestly @Anameisaname has it I think
Your mother needs to see sense and stop making demands , her actions - miss guided or not - were clearly wrong .
Why should the cupboard be sold to her, why should someone else pay for the leases to be updated?
If she wants resolution she needs to admit she made a mistake , apologise and put it right .
I honestly can't see that would jeopardise her position.
I think her current approach is just feeding the flames and antagonising the freeholder.

He wants expert counsel advice from a barrister who can advise on the outcome of it went to court, and also advise one what mum should do.
Of course he does !!

The question is, would there be a breach of lease if a tribunal decided the area under stairs was 80/20 in neighbours favour?
I.e. and that mums actions were due to lack of clarity in the leases?

At the moment we are deciding if mum needs a new solicitor....

mum's current solicitor is not experienced in leasehold law or leaseholder disputes...

His current advice to mum is:

1. put cupboard back and negotiate reduced compensation amount..

Or

2. get a barrister to give us counsel advice about the state of the leases and what would happen if it went to court.

Mums opinion is that it's not her fault, as she acted on the advice of her conveyancing solicitor...we tried to explain that is a separate matter she needs to take up later...

She still shouldn't have taken the area under the stairs...if the freeholder has been arguing with her about it

Yes I think there's every chance that a decision would be in the freeholders favour and against your mum .
But then what ? It's hardly likely that repossession of the flat will be granted and as for compensation for loss of rental space , there would need to be evidence establishing what the freeholders claim m for massive sums was based on .
And honestly I think a small claims court or tribunal ,( I think the former is more likely ) would want the parties to go to mediation first.

Have you tried asking for advice here
https://www.lease-advice.org/

Yes we did.

They couldn't advise on anything legal in the 15 mins we had to chat to them.

They only said that it seems more likely, based on the course of events leading up to mum gaining access to the area under the stairs, that the lease is likely to be found in the neighbour freeholders say 80/20 favour EVEN if the lease is unclear.

I'm guessing that would be enough to mean mum needs to pay his court fees.

So - based on alot of advice now - it seems ;

• avoid court at all costs.
• reinstate the area under the stairs......

then it becomes a matter of compensation....

As somebody on this forum mentioned - once the cupboard is back, it will be difficult for the neighbour to prove that the area under the cupboard is worth what he is asking, as he hasn't provided any proof (no surveyors).

We would hope that he would be satisfied he has got it back and leave it at that.

But this has become a long standing argument now, so we just don't know.

How about finding a mediation service ?