License to Alter (£3k+) - unclear if needed for bathroom refurb in leasehold property

[harrison247]

Hi everyone, first-time poster here! My partner and I bought our home as first-time buyers last year, a long-term leasehold maisonette, and we now hope to refurbish the bathroom. The alteration section of the lease reads as follows:

(13) Not at any time during the said term without the license in writing of the Lessor... to make any alteration in plan or elevation of the maisonette building hereby demised or in any of the party walls or the principal or bearing walls or timbers thereof...

The key bit is that no alterations in load-bearing walls can be made without a license from the lessor (i.e. freeholder). The cost of this license (plus a surveyor visit plus admin) would be over £3k, according to the freeholder's fees. Considering the other costs and benefits, this extra cost would not make the "ideal refurbishment" worth doing.


Our ideal refurbishment would involve 3 bits of work that relate to the walls.
1. Installing an extractor fan in the exterior wall of the bathroom. (This is a bearing wall, but a vent/grill already exists on the outside.)
2. Connecting the newly positioned toilet to the exterior soil pipe by passing this through the exterior wall.
3. Removing the interior walls of a coat room adjacent to the bathroom. We understand from contractors that these walls are not load bearing, and would get a surveyor to confirm this.






I feel points 1 and 3 are likely fine, no license needed, but point 2 is the one I am most unsure about. It depends on the legal definition of what constitutes an "alteration" to a wall: does creating a hole and feeding a new pipe through the wall count as an alteration, even if it doesn't change the overall size/look of the wall? (All works will be done by a suitably qualified contractor.)

Any ideas or suggestions much appreciated! I will seek formal legal advice if I cannot work this out, but first trying to confirm that it isn't a clear yes/no either way.

[atticus]

You clearly understand the clause. Whether any item of proposed work comes within those criteria is a matter of fact and not law. You might wish to consult a building surveyor. NB also the words about about altering the plan or elevation.

[harrison247]

Thank you Atticus - I think you're right, this question is more about a construction definition than a legal one. So if we want to clarify what is correct (and then present to the freeholder), we're probably better off asking a surveyor than a solicitor.

Noted on plan/elevation, but I am pretty certain we would be fine there. The only "plan" in the lease simply shows the exterior boundary of the whole building, not an interior floorplan. So our alterations wouldn't change the plan or elevation.

[R0b]

Just to add to what has already been said, and I'm no property lawyer but if you look at it from the angle that a leasehold owner would normally have the right (to a certain extent) to make changes or alterations within the property except any structural changes as those structural alterations would be reserved for the freeholder to maintain, usually in the form of service charges.

If you are going to be drilling a 115-125mm hole through a load-bearing wall to accommodate an external soil pipe then a reasonably minded person might think that you are altering the structure of the load-bearing wall. Indeed if you google the definition of alteration you will find that it says the changing of something or its appearance or structure. There is also an old case called Bickmore v Dimmer [1903] that suggested the meaning of 'alterations' was limited to the form or structure of the building. Also an improvement would be construed as an alteration (which this may very well do in relation to the soil pipe).

In my view, the drilling of a hole would in essence remove some of the brickwork that was intended to form part of the structure and load-bearing wall and therefore, I think it's likely that it would be construed as an alteration and you would need to seek consent.

Playing devil's advocate, what if the contractor you employed to drill the hole didn't bother checking the brickwork for any damage or crumbling and then installed the soil pipe, but unbeknown to you, the structural wall was already crumbling away and couldn't sustain the hole without resulting in further damage or repair to the load-bearing wall and the freeholder then having to either have the brickwork replaced for new or the insertion of wall-ties or something similar?

Just so we're clear, have you approached the freeholder for consent already and that's where the fees have come about?

As an alternative and I'm sure you have probably already thought about this, is it not feasible to run it up through the roof and terminating in the loft or our of the roof if necessary?

[harrison247]

Thank you Rob. Yes, I sent a non-specific email to the freeholder asking what the process was if we wanted to do some refurbishment. They replied with a stock answer saying that any alterations would need a license to alter (which I disagree with, according to the terms in the lease), and listing the fees - license to alter: £1750+vat, inspection from their surveyor: £800+vat, admin costs: £150.

You're likely right about applying the literal meaning of "alteration". It's probably wishful thinking on my part, but I'm hoping there may be some definition, used by surveyors or structural engineers, that would mean that if the change is minor enough (by some metric) then it is not meaningfully considered an alteration. Unlikely, but I'm going to dig a little further before giving up!

[harrison247]

Also Rob, we have upstairs neighbours in the maisonette above us, so going up isn't an option. Plus I believe there are regs and practicalities about soil pipes sloping downwards (unless you use a macerator/pump, which seems best avoided!).

[wales01man]

Why do you need to put in a external soil pipe? what is wrong with connecting to the pipe already there?

[harrison247]

The toilet is being moved about 1.5m, so current soil pipe is in the wrong location. I don't know much about plumbing, but the contractors we've asked for quotes have all said it would need to connect externally. (I assume because there wouldn't be physical space to lay a soil pipe at the necessary drop angle.)

[R0b]

Sorry I missed the replies to this.

I think you may be limited on options in terms of your refurb. Short of redesigning your bathroom, you will either have to pay for the fees or you could challenge those fees but you would need to justify why the fees are unreasonable and I think if you did that, it would have to go through the tribunal following the appropriate legal process. For example, do you actually need a surveyor to inspect a hole being drilled through the wall? Maybe, maybe not.

It's a shame you had already written to the freeholder and perhaps not what I would have written because you may have set yourself up for the freeholder to insist on those fees regardless now. You may want to write back to them (politely) in response to their latest email and clarify that the refurbishments you are seeking consent for is to simply drill a new core through the wall so that an external soil pipe can be fitted, and make it clear you have no intention of structurally altering the load bearing walls which is what that restriction is intended to cover. If you can get the contractor to come up with any additional health and safety reasons why the soil pipe would need to go outside (which is not simply for your own benefit) then that might add some weight, or it may not.

Worst case, the freeholder says bugger off, pay the fees or no consent. You then have a choice of replying back to the freeholder and saying that you are putting them on notice that you intend to look at making an application to challenge the fees that the freeholder is asking for on the basis of them being unreasonable, though you may argue the fees for the licence to alter are necessary and reasonable so that the consent can be recorded. Alternatively, you will need to figure out another way if possible to get what you want.

Just as an FYI, all waste pipes must have a 'fall' to ensure that the waste goes out into the soil pipe, but that fall can vary depending on the pipe size and length. As a general rule of thumb, for a 32/40mm pipe diameter, there should be a 1 in 40 fall i.e. for every 40cm over the total length there should be a 1cm drop. Obviously the contractors have seen the space and layout, but maybe one option to resolve this would be to raise the floor level to allow for the drop if possible but might compromise the look, or box in/create a false wall to hide the pipes if they are going to be on show.

Other than that, afraid I don't have anything else to add.

[harrison247]

Okay, so I what I am now considering is adjusting the layout plan, as attached here - Plan B.pdf - this should not require license to alter, according to the rules of the lease. This would involve:

1. Confirming with a surveyor that the coat room walls are indeed not bearing, and removing those internal walls to increase the floorspace.
2. Leaving the toilet in the top left of the room and putting the sink in the top right, which should mean that no new pipes need to be fitted through the exterior (bearing) wall. (The sink and bath can both feed into the current bath wastewater pipe.)

If I do this, my inclination would be not to inform the freeholder, as I do not believe I would need to do so under the lease (which only says altering bearing walls needs a license); if I did tell them, the worst case is that they could dispute it or say that that if I want any form of written consent then there will still be a charge. But, when eventually selling the property, I would then need to state in the sale docs that works had been done in the property - in this situation it would be preferable to have some form of consent from the freeholder in case the buyer's solicitor questions this. Or am I over-thinking it? If the alteration is not prohibited by the lease and I have all the appropriate construction/surveyor documentation, surely that is enough for the buyer?

[R0b]

I think you may be overthinking it but it does really depend on how diligent the buyer's conveyancer or solicitor is. I don't recall there being a question about alterations when I purchased my property a few years ago but even if there was, you would have to read the question carefully to see what it is asking you. The question may simply say have there been any structural alterations, in which case you could say no (assuming the coat room is non-load bearing) or it might say have there been any building works done to the property, which is pretty vague but I would take that to mean things like extensions, removal of load bearing walls etc. which again, you could reasonably state no. If you wanted to protect yourself you simply say a non-load bearing stud timber wall in the bathroom which was previously a cupboard/coat room.

If one buyer isn't comfortable with what you are doing, there's always going to be another who doesn't give a toss and will buy it anyway. If there is concern the buyer might ask you to pay for indemnity insurance for breach of lease - I don't think that's a great deal of money but I did the same for a removal of a load-bearing wall where a steel lintel was put in by a previous owner and the seller didn't know if there was any building regs approval. Think it cost something like £1500 and it passes on to successor buyers. So there might be something similar for your situation which you could offer as a compromise worst case.