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?

Lack of clarity won't do her any favours, legally; especially given she didn't even download her neighbour's lease to see if it did offer any further clarity. Her solicitor is saying she didn't pay for a full service to have the lease fully explained; and didn't give her advice in writing anyway. You can't use lack of clarity as a defence. If she didn't know it was hers, she shouldn't have accessed/adjusted it. The presence of smudgy writing over the area should have been an indication that it wasn't solely hers.

The best advice is going to be to return it to its previous state.

What happens after that isn't really down to your mum. I'd agree that seeking repossession due a breach of lease is unlikely to be successful; but it's quite possible that he'd be awarded compensation for not having use of his space - which could add up, if they use local monthly storage costs for a similar unit, times several years. Where I am, you'd be looking at about £300 a month minimum for an impaired access unit of the size you've described. That's £3,600; so if your mum has had access to the cupboard for say 3 years, that's potentially £10,800.

It seems that most of the people you've talked to have said that it's very unlikely that this will go in your mum's favour, if they've given an opinion. Even if it was found to be 80/20 access, with your mum having the lower portion, it's very unlikely that her lease would allow her to modify the space, or block the other party from being able to access it.

Burying her head in the ground has made this a lot worse, but it's still solvable at the moment.

@YouveGotAFastCar if I'm reading it correctly the cupboard is a metre square with a sloping roof and access off a shared path .
Does that size of cupboard command £300 p month rental fees in some areas?
It seems a lot of money?

Mediation is not something our current solicitor has suggested as an option - as the freeholder feels the under stair space is definitively is his, and that there is no lack of clarity in the lease.

I think mediation might help later on - if we can't come to a resolution about his compensation demands.

I think the under stairs space will be going back as soon as we can arrange it - and under the advice of a new solicitor.

You really do need to rely on advice from a property solicitor (not a simple conveyancer) who specialises in leaseholds. Leaseholds are very complex and you're not going to get any proper advice from anyone who hasn't seen the leases and all the other deeds, and who understands them.
There are things here being conflated which need to be thought about separately. First, the reasons your mum did what she did aren't relevant except insofar as she could have a case against the solicitors' firm if she was given incorrect advice. Second, having done it, the issue is what to do going forward. Even a solicitor will have no easy answer but the issues to think about would be 1. Whether she should just fill up the hole and reinstate the area, on a basis of not accepting that she's at fault but to avoid litigation; 2. why would f/holder get large damages? Damages relate to actual loss... What has he lost?; 3. courts are not at all keen on people being litigious so a solicitor will do everything they can to persuade parties to mediation, and if f/holder doesn't agree, he is at risk of costs; 4. if he's throwing terms around such as forfeiture for breach, that's very difficult to get on a residential lease.
Look at something like Chambers online to find a relevant solicitor and if they say they need counsel's advice you're going to have to bite the bullet.

Mediation would allow both parties to express their points of view in a controlled and calm way , to help each party understand the actions taken.
I'm afraid that,as others have said ,the new access shouldn't have been created because it was unclear that there was any right to do so .So your mother is going to have to acknowledge this ,but hopefully if the freeholder hears her reasons in a calm unemotional way ,he may feel more sympathetic and less punitive .
You say that there is more detail in the freeholders lease about the cupboard so perhaps in mediation the freeholder can explain and persuade your mother why he believes the cupboard is his .

Yes, I think all your points are valid.

We just need a very good solicitor to get us out of this mess on the basis that mum acted based on wrong phoncall advice from her conveyancing solicitor, and on an unclear lease which a barrister/counsel advice should confirm.

I would hope mum will not liable to pay any compensation if the lease is found to be unclear.

Thanks for all your comments 🤞

Ive been looking for solicitors who are very experienced in these matters.

Does anyone know how to find one?

The law society, sra website, Google have been very difficult to find someone who has specific expertise in this.

Can I suggest that before an expensive solicitor is found, she blocks up access. The longer she leaves that the potentially higher costs there may be.
Fix the immediate problem ie access and then the only thing to solve is the question of compensation

Any solicitor will be expensive.....

I don't know about reinstating cupboard before solicitor advice.

It could be seen as either an admission of wrongdoing before mum had a chance to defend her actions.

We spoke to a potential solicitor who said mum needs to demonstrate why she did what she did and that there was cause for doubt regarding who owned the cupboard.

Still advises we need expert barrister advice to confirm there is lack of clarity in the lease which led to mum's actions. They will help negate /reduce any compensation payments.

But yes, we need to ask a solicitor if we need to put the cupboard back, as it would remove the need for litigation and court.

Repair the hole, only on the proviso you both have key, sounds like it’s probably a shared cupboard, maybe for communal area cleaning supplies.

@Feebs7 I think @Anameisaname is correct .
Your mother made the hole without talking to the other party and without clear proof that she had a right of access .
It will surely be impossible to argue that she was in the right to do this.But she can still argue that she was relying on incorrect ,unsubstantiated advice and would like this taken into account .
She now knows that slcrs verbal advice that it was hers, and the email advice from the junior are not confirmed ,have been retracted .So she has an argument for explaining why she created the access but no longer has an argument for keeping it there .
Filling the hole in won't remove her explanation as to why she created it but it will mean that from the date the cupboard is reinstated to it's orginal state the freeholder can't add charges for rental loss .

Google 'Chambers' solicitors directory. They have a search function.

Honestly I'd not use solicitors at this stage .
As I said before ,surely the only avenues for legal action by the freeholder are

a Tribunal for repossession because she broke terms of lease - i cannot see this being succesful
b small claims court for loss of rental value ,he'll have to produce evidence to support his figures

Does your mother need a barrister for either ? Really ? What would he argue that she cant ? I suppose barrister can quote other relevant cases for the Tribunal ,but what could he add for the small claims court ?

Wouldn't the neighbor have to show an actual loss to claim compensation?

They weren't actually renting out that space and denied rental income. Or did they have to rent another space to store something? In which case I'd have expected legal action from them a lot earlier.

I'd have assumed it was a communal cupboard and only used for storage of communal items (ie a lawnmower if it's outside)

We have a flat communal cupboard that has elec meters in and we make it clear no one is to store stuff in it.

So I'd remove my items and make good the hole asap. Wait for them to start legal action then take that to a solicitor to argue once the cause of action is known.

I take the point that mediation would need both parties to be open to changing their pov.
But I'm v v sure (from friends experience with small claims )that the court will not progress the claim without asking parties to mediate .If one refuses this does rather suggest that they are not seeking fair redress but are being adversarial.
Don't know about Tribunal .

Wait for them to start legal action then take that to a solicitor to argue once the cause of action is known.
exactly!! This is what I keep trying to express in my long winded posts .
Dont be running up huge bills now .

OP.
As @amberedover1 explained, your mother can reasonably argue she acted on verbal advice in making the hole. However that advice has been retracted. So she can't reasonably rely on that advice for continuing her access. By blocking the access, all she's admitting that there is uncertainty now (not then) and she's helping to mitigate potential losses incurred by the freeholder.
The longer this is left the worse this gets, given you've explained the leaseholder is angry and threatening.
It sounds like your mother is not that bothered about this cupboard and is stressed out by this whole thing. Right now, He has 2 x claims. A claim for access and a claim for losses. If you remove one of the 2 then it makes the losses one less likely to proceed potentially.

Chances are you will have to go to mediation first. Court will cost tens of thousands and even if you win you don’t necessarily get costs if you do it is not all of them.

All great points....

Yes, that's why we've taken a pause on this before deciding what to do.

Our current solicitor has given us just 2 options ;

1. pay a huge bill to get a barrister to interpret the leases to prove they are unclear and see if the matter is worth defending mum in court Or
2. concede the cupboard is freeholders and negotiate a compensation amount.

But various people on the forum thinks that there is another option:

3. concede the cupboard is his, and wait to see what he demands next?

We know he will definitely demand compensation, I imagine he might want mum to pay for his legal fees to date (it's what I would ask).

He may want more compensation for loss as rental of a storage unit, but I think he will struggle to prove a loss, as he gave us no evidence to date for any loss, apart from his solicitors fees.

Can he takes us to Court demanding loss of rental storage unit?

If we put the cupboard back, I'm not sure we should change the lock so it's a communal cupboard 🤔

Although we think the cupboard was a 'fuel store' which is named in the freeholders plan, was used by both flats at some point. We think mum's keys got 'lost' by previous owners who passed away, and the freeholder took over sole use. But we will never know, and it will be very difficult to prove - unless we go the costly barrister route.

I also think if we put the cupboard back with a shared key would incense the freeholder 😡 and I'm positive he would want to go to a tribunal about it.

After this is resolved, as quickly as possible, I think the healthiest thing for mum, is to buy another flat with share of freehold or a small house.

But various people on the forum thinks that there is another option:

Various people on this form mostly have no legal knowledge! Hence, the various suggestions/assertions that your mum can ignore the freeholder, turn this into a communal cupboard, etc.

Wasn't it only me who suggested doing nothing ?
I have apologised for this ill considered advice and retracted the comment.

Can he takes us to Court demanding loss of rental storage unit?

yes he can. Whether he'll succeed is another matter. Hence the suggestion you reinstate the cupboard to how.it was.
He'd need to show how the losses were calculated and that would need to be presented in court and you would have a chance to challenge it eg show that there was no demand or that it would not rent for that amount.

This is why I suggest reinstating as the losses point is harder to argue. The access and hole is much clearer

Also you are not necessarily conceding mum does not own the cup.

Just that it's unclear and you will return to how it was as can't afford legal costs to fight it. And it's not worth fighting for a small cupboard as won't do anything to value of a flat. Just handy to have but not worth much.

We need a good solicitor to manage this.

If we put the cupboard back we need to make it super clear that we think the ownership is still unclear, but can't afford to continue arguing the case.

If the cupboard gets put back, and the freeholder still argues for compensation, even if it's just for his solicitors fees, then we will need to go to court.....because mum can't pay.

If we put the cupboard back we need to make it super clear that we think the ownership is still unclear, but can't afford to continue arguing the case.
I ought to wait for @Anameisaname to come along with their clear posts but ..
Why do you need to make it super clear that the ownership is in doubt?
Who are you going to tell that you can't afford to argue the case?
If your mother cant pay how are you going to fund the cost of a" good solicitor to manage this"?
" we will need to go to court". which court? to decide what ?
If you fill in the access it will be up to the freeholder to take your mother to court and I can't see any other options than

1. the Tribunal for breach of lease for creating the access - which you'll now have filled in and is such a minor branch that he'll hardly have a case

2 a small claims court where he'll have to prove a loss and substantiate the amount
and / or prove that he had to take legal action to get you to fill the hole in
and the longer you delay doing this, the stronger his case on that will be .