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?

I just think that whoever you are consulting at the moment is persuading you ( wrongly IMO ) to go down a very expensive route of getting ' a good solicitor to manage this ' when what you need is to fill the hole in and wait and respond to whatever action your Freeholder takes next.

Spot on. I'm not either of us can add much more to this debate !

You need to go to First Tier Tribunal to have a determination carried out on the lease; this is literally what they're there for. In my experience where there's ambiguity they tend to fall on the side of the leaseholder in these matters.

The application fee is not a huge amount and you will be heard by a panel of experts in leaseholder law - you don't have to have legal representation, but if you want it there are a couple of quite good leasehold specialist firms, I'd suggest speaking to the leasehold advisory service or TPI to get recommendations.

I'd suggest not paying any rent on the space, and if he takes it to small claims then they will almost certainly send it over to the FTT as they don't have the relevant expertise to arbitrate on it. If he goes for breach of lease this would also be through the tribunal.

So the only thing that the freeholder may be able to claim back on, is the cost to him of bringing to our attention the conditions of his lease, which shows that the cupboard may not be our mum's.

Can we argue that he could have just supplied us with a copy of his lease and freehold title? Which he chose to do with a solicitor one year ago?

I believe mum had been asking him for some time to provide evidence that the cupboard was his.

Fyi,When I've said 'we will pay' for this and that, I meant that mums children would get loans to pay her to get her out of this mess, but it's really a last resort, as mum doesn't have any savings and only gets a state pension, and it would also bring us all into financial difficulties.

So the only thing that the freeholder may be able to claim back on, is the cost to him of bringing to our attention the conditions of his lease, which shows that the cupboard may not be our mum's.
No ,I don't think he could claim for costs involved in using a solicitor to show you the conditions of his lease .
His choice to do that wasn't it ? He could just as well have told your mum to get a copy of his lease from the land registry herself .From memory that costs circa £15 .

Mum would have relied on the advice from her conveyancing solicitor, who only later on alerted her to the fact that he never checked the freeholders lease during conveyancing should would have relied on her freeholder to provide her with evidence.
She doesn't know anything about downloading anything....

She doesn't know anything about downloading anything....
I completely understand that @Feebs7 .
My point was that the freeholder ,instead of using a solicitor to refer to his lease and send info to your mum ,could have just said/emailed /written to your mum and said
"I'm not going to the expense of providing evidence that the cupboard is mine .If you don't believe me ,get a copy of my lease from the land registry yourself ."
Do you see what I mean ? Your mum might have asked the freeholder to prove that the cupboard was his ,but he was under no obligation to choose an expensive method of providing what he regarded as proof .He could even have photocopied the relevant bit of his lease and stuck it through her letterbox .No need for solicitors and their charges .

Yes, this is a good point. Hopefully we can avoid paying any compensation if we just put the cupboard back.

We have all decided that reinstating the cupboard asap is the best first step.

Then we would get our current solicitor to inform the freeholder: cupboards been put back following recent evidence provided by the freeholder, which casts doubt on its ownership, therefore we can't afford to argue the matter anymore.

And leave the ball in their court (excuse the pun !)

If the freeholder wants to pursue compensation and we refuse, he may take mum to small claims court.

I would imagine mum might need a solicitor for small claims court, to reduce her compensation.

Would mum need to pay freeholders solicitors fees in a small claims court, if court finds his compensation request amount too high, would the courts reduce compensation amount?

Do you need to pay a solicitor to respond?

If you have a letter from a solicitor firm you don't have to respond.

You can just tell the landlord it's been restored. Though it is Safest to put it in writing so you have a trail. But you don't need to respond to every part of the letter.

@burnoutbabe
suggests I don't think you need slcr to
"to inform the freeholder: cupboards been put back ", write and tell him this yourself
Yes s court can award a lower account if it gets the amount claimed isn't justified or proved .

So, this is a one meter cupboard, under some stairs, with a sloping roof. It has a locked door externally which only the freeholder could access.

The mum knocked a hole in the wall inside her flat and put in a door. Into an outside cupboard. Which seems like a good way to let cold air in, but anyway.....

What was in the cupboard when she did that?

Also, doesn't this now mean that he can enter the cupboard with his key and walk into her flat?

It seems a lot of fuss for nothing really. She should block up the access. He is extremely unlikely to get compensation as it doesn't sound like something he could ever have rented out nor was continually using (else it would have been full of his stuff, which it presumably wasn't).

I agree @VanGoghsDog but what worries me is the advice that the OP has been getting from solicitors they have consulted. Engaging barristers to advise on whether the leases are ambiguous and a good argument can be made etc.
And that the OP is very influenced by this .
As another poster has said there is a land tribunal that could pronounce on the status of the cupboard for a modest fee. Why didn't the solicitor mention this .
It concerns me that the OP will get sucked in by these solicitors and spend loads of money when it's unnecessary.

Most solicitors are not leasehold specialists and are advising on the basis of their own knowledge, I'd engage a specialist solicitor and talk to them specifically about determination of the lease because that will be the start of the conversation about compensation - if it's found to be yours then the FH can take a hike.

As I said before, if it goes to small claims and your defence is that the lease is ambiguous they will pass it straight over to FTT. It will just draw out the process, you might as well get ahead of it.

We're getting quite confused 🤔
So we shouldn't put the cupboard back?

Are we thinking now what we do need a specialist property dispute solicitor to find out who the cupboard belongs to, via the land tribunal? Before putting the cupboard back?

Could mum submit her lease to a land tribunal, on her own, with no involvement the freeholder or any solicitors? Just so they determine who the cupboard belongs to? Before taking any further action?

I don't think it matters whether you put it back or not, to be honest - it's not going to change anything except the length of time you're charged this spurious rental fee for, I don't think that taking the direct access away will make this problem disappear.

If you are confident as a layperson reading leases, get a copy of the FH's lease from land registry (it's about £5) and review that. If it's still ambiguous, make an application to the first tier tribunal for a determination,

If you're not confident, then I'd suggest spending some money on an hour of a specialist solicitor's time; asking them to provide a lease review. If they agree it is not clear, the next step is to go to FTT and get a determination on who the cupboard belongs to. Everything else falls into place behind that.

The amount of compensation the freeholder is asking for is over £10k, so I don't think this qualifies as a small claims court matter.....

These are possible scenarios so far:

1. mum puts cupboard back, and freeholder is satisfied he has it back, and doesn't pursue the matter of compensation as no proof of losses.
   (Apparently he used the cupboard to store a broken fridge.)

2. we go to land tribunal and they find the lease unclear and
   a) determine it's more likely to belong to freeholder as he had sole use of cupboard before mum took it off him. (Could have been adverse rights, we will never know).
   However, no proof of freeholder losses, therefore freeholder asks court to get mum to pay for his solicitor fees?
   Or
   b) determine in mum's favour and the whole thing goes away?

You say the tribunal more likely to decide in leaseholders favour.....the freeholder is also a co leaseholder.

Also, Mum never had use of that cupboard herself, no matter what her lease says, and the freeholder could have had use of that cupboard more than 10 years, adversely.
But I would need to check how long he was living there before mum.

@Feebs7 I cannot stress strongly enough the fact that you need to reinstate the cupboard asap.

Forget your scenarios and solicitors and land tribunal. Just put the cupboard back. This removes the substance of the claim. The longer you fail to do this, knowing what you now know, the harder it makes it to argue in any subsequent action the leaseholder may take. If you put the cupboard back you can argue that mum relied on a verbal communication in good faith. She was then informed that it is ambiguous and has therefore reinstated.

Now, once it's been reinstated how it was. If mum is bothered about this cupboard or the leaseholder then decides to make a claim for losses, you can then go down the routes suggested by PP to get the lease clarified. Which may help the case. Even if it didn't and it was determined tone his, then He can try to submit a claim in the courts either small claims or otherwise but I don't think he'd have much success arguing such a large amount and I'm sure a solicitor would advise him of this. As long as the cupboard has been reinstated!

Whatever you/your mum decide to do, you need to be aware that under the current circumstances this property would be very difficult to sell. This type of dispute must be disclosed during the sale process. So it is in all your interests to get it sorted.

In any event the cupboard is supposed to be a communal one. Access is from an outdoor area so it is never going to be just hers. It's either the freeholders or belongs communally.

It's pretty much worthless to add value to your flat and not sure anyone wants a cupboard that accesses your flat from outside like that -sounds insecure. Would only ever be used for stuff of low value that you may use in a garden.

So if downloading the freeholders lease doesn't make it clear it's yours just block it up. Claim good faith usage up to now if challenged in court.

Do you want this legal issue hanging over you down the line when the flat is sold? Is it worth £5000 to win access to a shared outside storage area?

Yes we know...

We don't think it's a very healthy environment for her to live out the rest of her time and we are encouraging her to look for somewhere else and have a fresh start...

In any event the cupboard is supposed to be a communal one
@burnoutbabe you can't know that .

Honestly @Feebs7 reinstate the cupboard as per @Anameisaname is saying
Don't spend money on legal advice until you know what legal action the Freeholder is taking . When you know that you can seek appropriate legal help.

@Feebs7 has it occurred to you that the Freeholder is trying to goad you into engaging solicitors and spending lots of money?
Wait until he takes definitive legal action - by which I mean he goes to court and brings action against you . Not if he gets his solicitor to send you a letter .
If he's going to court court £10000 he will have to pay 5% of his claim before he starts the action.
And he's going to have to produce evidence that you've deprived him of this amount.