Compulsory purchase and lease questions

[SCLA]

As per the title.

Is there a sub-forum where it would be better to post or do it in here?

[atticus]

Here will be fine.

[SCLA]

Thank you Atticus.

I think it's quite a tasty problem. We are leaseholders on a flat with a remaining lease of over 150 years. No complications such as maintenance or ground rent arrears.

All flats have private dedicated parking. This parking, as well as one pedestrian access, is via a car park adjacent to the flats. That access is written into the lease.

The council own the car park and have decided they would like to sell it for development as part of the town's regeneration. That's the official reason. I'd say they are broke and just need the cash.

There are two problems coming down the line. The first of these is that they have suggested the car park will be unsafe in under five years without significant expenditure. If it is condemned it would immediately remove all vehicular access to their parking by the flat owners. I'd like to understand what the issues would be for them in that case and what remedies would exist for the flat owners. There is absolutely no possibility of alternative access.

The second is in the event of a sale. The redevelopment of the car park would also immediately remove the access to the flats' car parking. What options exist for a developer purchasing a site with those rights?

It has occurred to residents that the Council could resolve this by way of compulsory purchase of all the flats but I don't think they have the money to do that. Even if they do, the fact that they have said they will shortly be marketing the site suggests that's not in their plans.

Trying to look at it from a potential new owner's perspective, and assuming they do not facilitate new access as part of their development, I think the obvious thing for them to do would be to offer a payment to flat owners to give up the access rights (and by default the parking associated with each property). The amount is a valuation issue but the legal question I have is what happens if they do not obtain universal consent from all of the flat owners? I think that's a likely scenario barring a very generous offer.

[atticus]

Start by establishing what rights the council has given that enabled parking and access to be written into leases. Find the document(s) and see what leverage that gives over the council.

I hope that such documents exist. Otherwise it is possible that whoever granted the leases granted rights that they did not have the right to give.

[SCLA]

I have all the lease documentation. It is unequivocal in granting 1) access through the car park service roads in both directions between the public road entrance to the public car park and the private parking provided at the rear of the flats and 2) access to the private parking from the public car park via a bridge. The Council are the freeholder and granted the rights.

[atticus]

Then hold the council to what it has granted.

[SCLA]

Can someone with the appropriate knowledge please advise the best ways of protecting the interest?

If there is nothing that can be done proactively and through one or more routes that I have described the rights are compromised or lost, then what are the mechanisms by which the Council can be held to its obligations?

[atticus]

If the situation is as described, the lessees may be able to obtain an injunction to prevent the council doing anything that adversely impacts on the the rights it has granted in the lease of the car park land.

The first step would be a firmly worded letter to the council.

Lessees' mortgages may require them to take action to protect their interests or at least to notify the mortgage lender.

You should gather together all the documents and consult a solicitor.

[SCLA]

Thank you. Could a proposed sale be considered something that might adversely affect the rights, bearing in mind that the purpose of the sale would be for redevelopment of the entire site which would inevitably stop the access at least for a considerable period of time? Alternatively, are the terms of the lease simply moved to the new owner?

I think once any sale took place there might be a blight issue as any conveyancer worth their salt would pick up on the possibility of the development and its implications - loss of parking!

[atticus]

Would you be able to exercise your rights to park and of access in the car park if it is redeveloped? I had assumed not.

A purchaser should buy subject to the rights in the lease.

Maybe your first step should be to find out the council's exact intentions.

[SCLA]

I share the assumption about what would happen to parking in the event of redevelopment. The reasons for this are firstly the stated intentions to sell for redevelopment, which would be a mixture of retail and residential, and secondly previous statements from a Council consultant that maintaining the existing access would be difficult/impossible. Obviously it has been pointed out that any difficulty should belong to the developer not the lessees. I can certainly see that the rights and benefits could be preserved at a cost but I also understand how that might compromise a developer's plans, not least in exploiting every inch of space.

In terms of the Council's intentions, the desire to sell the site for redevelopment has been publicly stated. They also stated they were not considering compulsory purchase so I think it's unlikely there is much more to discover about their intentions. In summary, they want rid and are obviously sympathetic to demolition and redevelopment of the site through which access is provided.