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Landlord's Consent to Alterations and how to obtain it Having been asked three times in a week how a tenant should go about obtaining landlord's consent to alterations to a flat it seemed that our advice might be of wider interest to those struggling with unfamiliar landlord / tenant relationships in Central London and outside. The advice below is given with reference to a Central London leasehold flat. The principles are more widely applicable in England and Wales generally (but not in Scotland). As with all professional advice this website article is no substitute for individual advice by a chartered surveyor or solicitor experienced in the particular locality, giving advice tailored to the specific property, individual lease and circumstances.
Richard Birchall Associates are requested by tenants to advise what consents are required for tenants’ proposed alterations and to assist in obtaining those consents. Conversely landlords, managing agents, residents’ associations and companies, directly or through their solicitors, instruct Richard Birchall Associates to respond to enquiries from tenants and to recommend whether consent for alterations should be granted and if so on what terms.
The consents which a tenant may need to obtain before building work commences are as follows
These consents are "stand alone" consents and one, some, or all of the consents may be needed before the game of building can commence:
All the above procedures will require the submission of detailed drawings showing the proposals. Such drawings are normally required at a scale of 1:50 showing the property as existing and as proposed. Plans are always required. Elevations of the building showing the adjoining buildings will be required if any external alterations are proposed, in which case it would be advisable to also produce a section or sections. Richard Birchall Associates CAD Drawings servicecan produce those drawings if requested.
The individual consents will have specific requirements and those are dealt with below.
Structural Details and Calculations If the loadbearing structures are to be affected the drawings will need to show details of the proposed structural alterations. Those structural details need to be designed by a structural engineer who will also produce calculations.
Most standard leases contain prohibitions against alterations. Sometimes those prohibitions are absolute, in that they do not contain the modifier >such consent not to be unreasonably withheld=, although a solicitor will probably advise you that such a provision is inserted by law so as not to prevent a tenant from modernising the flat or affecting non-loadbearing structures. It would however not allow a tenant to alter loadbearing structures or improve areas outside the area of ownership ("the demise"), such as creating a balcony or using part of the roof space. Where a proposal includes annexation of such adjacent spaces of the Landlord’s "reserved property" it is likely that a premium will be requested by the Landlord and advice may be needed from a surveyor and valuer as to whether the Landlord is entitled to request such a premium and if so whether the amount is fair and reasonable having regard to the benefit to both parties. Most professional landlords such as the Estates divorce themselves from direct negotiations with their tenants by interposing a Headlessor into the management structure, from whom consent needs to be obtained in the first instance. The Headlessor in turn applies to the superior landlord, the freeholder. A landlord will normally wish to grant consent for alterations which are improvements, because the works improve the value of the reversion (the freehold). The purpose of the licence is to control the manner of carrying out the work so that it does not damage the interests of the freehold or cause unreasonable inconvenience to other lessees. The procedure could therefore be argued as being mutually beneficial to the freeholder and to the lessees. The Landlord’s surveyor will normally recommend that consent be granted subject to a licence to be agreed between solicitors. The licence follows a fairly standard format, similar to a lease. An example is this firm=s own proforma letter which makes reference to standard conditions but can be adapted to suit the circumstances of a specific application. A Landlord’ surveyor will normally require :
Most leases of residential property contain a requirement that the floors be kept carpeted in order to prevent noise from one flat causing nuisance to occupiers of the flat below. If a hard floor (such as a woodstrip floor) is proposed, then the method of sound deadening and insulation should be shown on the drawings and approval sought. The clearer and more comprehensive the drawings are, the less questions will be asked and the faster the consent procedures. Like any application for permission, the human factor dictates that if the application is presented on a plate with everything in order it will be easier and a pleasure to deal with, be speedier and probably cost less. The Landlord=s surveyor will normally raise a fee >for approving plans submitted by lessees and inspecting buildings during progress= . The typical scale fee is Scale BS7.3 Approval of Plans as according to the Conditions of Engagement published by the RICS. The scale fee is as below:
The surveyor will inspect during the course of the works and on completion to ensure that the works are carried out strictly in accordance with the licence granted. Landlords can and do withdraw licences if the works are not being carried out in accordance with the licence, in which case the lessee is vulnerable to forfeiture proceedings for breach of covenant. That is that Landlord=s ultimate sanction A typical Landlord=s consent application would take 4 weeks from receipt of drawings up to the point of instructing solicitors and say a further two weeks for the solicitor=s work, so allow 6 - 8 weeks.
Planning and Listed Building Consent Planning permission may be required if there is to be a change of use of the property, or there are to be material alterations, particularly if they are to affect the external appearance of the building. Permitted development rights available to owners of houses are not available to owners of leasehold flats. Listing means that the entire building is listed, both internally and externally and therefore all alterations require consent. The degree of attention the planning department pays to the alterations of course depends upon what is being altered and whether those are original details or whether, as in this case, it is an area previously much changed and not of great concern to the public as part of the listing. Separate applications need to be made for planning consent and for listed building consent, although the procedures and forms are similar. Both consents will require the submission of 1:50 plans as existing and as proposed, sections and elevations and photographs. Typically six sets of plans are needed for each. There is a planning fee of about ,95. There is no fee for the listed building consent application. On receipt of the application, and having checked its validity, the planning department will circulate interested parties for consultation, including the design officer and the local amenity group ie. local residents, will notify adjoining owners and will publish the application in the local newspaper and on the Internet. This allows interested parties to make their views known within 21 days. The purpose of planning and listed building consents is to ensure that the public interest is protected against private interests. Where the building is listed, the design officer will certainly wish to inspect and English Heritage may also send a representative, although increasingly councils are operating under what is known as a >flexible authorisation= procedure, with English Heritage only being involved with the more sensitive buildings. Under the planning Acts, a planning application should be dealt within eight weeks. Typically they take longer, say up to 12 weeks. If there are no objections following the consultation procedure, then some minor applications are dealt with by planning officers under delegated powers and do not need to go before a committee. If there any objections at all, or the planning officers are concerned, then the application would be dealt with by the planning services sub-committee which meets every month or two weeks, depending upon the planning authority. The Central London boroughs with which we deal (City of Westminster, the Royal Borough of Kensington & Chelsea and the London Borough of Wandsworth) have efficient procedures for dealing with the applications, but due to the cyclical nature of building work it is not possible to be certain of time scales. The most that can be done is to ensure that a neat and carefully presented scheme is submitted for approval and that there are no amendments to the scheme once it has been submitted.
The purpose of building control consent is to ensure that the building works comply with the Building Regulations which regulate matters such as structural safety, fire safety, weather tightness, sound insulation, drainage and waste disposal, thermal insulation and general materials and workmanship. There are two routes to obtaining consent - a Building Notice or a Full Plans Application. A Building Notice allows an applicant to give notice of commencement of works within 48 hours. It invites the building control officer (or District Surveyor in Central London) to inspect. He has extensive powers and can and does require compliance with the regulations. This can affect the budget and timing of the works and the building control officer can require compliance up to one year after the works are complete. Therefore if a speedy and incompletely considered proposal is submitted it is possible to start work quickly and repent at leisure. If a Building Notice is served it should only be done after the scheme has been properly worked up by a qualified professional who has considered each part of the building regulations and made sure that compliance with the regulations has been allowed for in the tender. The Full Plans procedure is much more formal and therefore slower, but ensures that once the plans have been passed the building control officer cannot require changes. Typically such an application will take four to eight weeks. It is the safest route when it is important to remain on budget and on time. If the building control application is submitted at the same time as the planning application then there should be no additional delay, because the procedures take the same amount of time. The building control office of each local authority publishes a scale of fees which depends on the value of work.
This section will only concern those tenants who are proposing structural works which will cut into, thicken, underpin, make good or raise up a party structure - which includes not only the walls with the adjoining owners but also any floor structures. The Party Wall etc Act 1996 gives building owners certain rights over adjoining owners, but requires that before they are exercised, a Party Structure Notice be served on the adjoining owners giving details of the work and inviting approval, but putting into effect a statutory dispute resolution procedure if consent is not granted in writing within 14 days. Both parties appoint a surveyor. A schedule of condition of the adjoining property is prepared. A document - an Award - sets out the conditions for carrying out the works. The building owner normally pays the fees of both surveyors. The procedure is akin to a statutory arbitration and typically takes 6 to 8 weeks. Operation of the Party Wall etc Act 1996 is a specialist field and a building owner is advised to appoint a Aparty wall surveyor@ who is experienced in the operation of the Act. Further information on party wall procedure is available from our WebSite.
This will only be relevant if the property is mortgaged or otherwise secured for loan purposes. Most security deeds prohibit alterations without consent, although consent is normally a formality as the lending institution=s security is being enhanced, however the lender expects to be kept informed and in cases of a high mortgage might make certain restrictions, because during the stripping out phase the value of the property is reduced and the lender would be keen to ensure that the value is not reduced below the level of their security.
There is expected to be a difference in the value of the property modernised and unmodernised. A client considering improvement works is advised to establish the difference in values - on a Day 1 basis. The plans should be discussed with an estate agent or valuer to ensure that what is to be constructed is as free as possible from drawbacks or negative features which might otherwise deter future purchasers or delay the sale, when those negative features could be designed out at scheme design stage without necessarily reducing the personal enjoyment of the proposed refurbishment. The difference in those prices, modernised and unmodernised, is the cash from bank amount that can be spent without the development costing more than it is going to be valued at on completion. A tightly drawn specification should result in accurate and fixed building costs with say a 10% contingency on top for genuinely unforseen works or variations. To that should be added the following :
Richard Birchall will be pleased to offer further advice. Amended 13 October 2001 15:29 |
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