I purchased a penthouse apartment four years ago in London’s West End. It was the outside space that really sold it to us, being on the top floor of this wonderful old building and with views. We do not own the freehold of the building and the freeholder has decided to explore extending the building upwards, using the government’s relaxation of planning laws. Not only will I no longer have a penthouse apartment, for which a premium was paid, I will have to live with disruption for years to come. The property’s value will also be affected. Is there anything we can do to stop the landlord’s plans to develop upwards?
Nick Martyn, a partner in the property disputes team at Royds Withy King, says the changes to permitted development rights which came into force in 2020 to allow “building upwards” were focused on seeking to address the current housing shortage in urban locations.
They are good news for developers and landlords seeking to maximise their property assets but an unwelcome development for flat owners, particularly those who own top floor flats or penthouses. Building or developing upwards is becoming more common and advisers are having to think more creatively in helping people to achieve or prevent that aim.
Unfortunately, there is no “one size fits all” approach and more often than not, there is a lot to consider. It is critical to understand the building’s ownership structure, what your lease says, what your rights as owner are and what development rights (if any) the landlord enjoys. That knowledge will help you to analyse ways in which the development might be restricted or prevented or how you might be compensated, in the event the work proceeds.
Given the age of the building, check whether it has listed status or whether there might be other reasons why development could be restricted. If the proposed structure is likely to affect light coming in through the penthouse’s windows, find out if you have a “right to light” and whether the proposals would infringe it.
Consider whether the freehold could be acquired collectively under the statutory rights available to flat owners as a means of preventing the proposed development. If those rights are available, gauge interest from other flat owners on whether they are interested in exercising them.
Investigate the historic transfers of the landlord’s interest to see if rights applied under the Landlord and Tenant Act 1987 (to be offered the landlord’s interest under what is usually called “the right of first refusal”) and check if the former landlord or current landlord complied with the procedure laid down in that Act. There may be an opportunity to acquire its interest at the price originally paid for it.
Be proactive and find out answers to the issues addressed above early. The closer your landlord gets to commencing work, the more likely it is that your options for resolving the situation will diminish.
We divorced long ago — can I still claim maintenance?
Can I make a claim for maintenance years after my divorce? At the time of the divorce, neither I nor my husband had significant assets. However, in the years since we split my husband’s business has really taken off – a business I helped to establish. I am now struggling financially. Can I make a claim?
Simon Donald, a partner at Cripps Pemberton Greenish, says it is a commonly held myth that because a couple are divorced this means they have no financial claims against each other. While decree absolute legally brings to an end a marriage, the financial claims between spouses can only be brought to an end by an order of the court. So, if a financial order has not been made, you may still be able to bring a claim for financial provision.
If there was no financial order then you may still be able to make a claim for spousal maintenance payments (if you have not remarried), capital claims for a lump sum payment, property adjustment orders (providing for a sale or transfer of property) and finally, pension sharing orders – for a share of your ex-spouse’s pension to be transferred.
The case in 2015 of Wyatt vs Vince brought this issue into the spotlight. The couple had obtained their decree absolute nearly 20 years before, addressing the financial claims between them. At the time of their divorce, neither party had any assets or significant income. In the years that followed, Mr Vince went on to create a green energy company that was worth, at the time of the case, an estimated £105m.
A lengthy court battle went all the way to the Supreme Court. While the Supreme Court judges expressed the clear view that Ms Wyatt faced difficulties in seeking a financial order in her favour, she was still entitled to pursue those claims. In the end, Ms Wyatt was awarded £300,000 (not the £1.9mn she’d originally sought), with the judge at the time stating: “The lump sum payment agreed between the parties fairly represents, in my view, a realistic and balanced appraisal of the unusual circumstances of this case.”
If a financial order was made at the time of the divorce, and if this included an order for you to receive spousal maintenance, then depending on the financial circumstances of you and your ex-husband you may be able to vary those maintenance payments to address your present financial difficulties.
While the process of dissolving a marriage has become more straightforward, the financial aspects will always require careful consideration. Seeking legal advice at an early stage will help you identify what steps you can and cannot take now to address your financial difficulties.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
Our next question
My mother took out an equity release lifetime mortgage which she didn’t realise would accumulate so much interest so rapidly, though the paper trail suggests she did understand it at the time. Because she can’t afford the service charges in her flat she is selling it and paying back her equity release debt, including a hefty repayment fee. To buy a new property, she is thinking of getting a new equity release loan, this time with a fixed lower rate.
Is this sensible? Would it be worth her giving me the money and me trying to raise the extra £100,000 in a buy-to-let mortgage? This would have the effect of potentially saving inheritance tax should she live for more than seven years. What might the implications be for my brother, who would normally expect to inherit equally but can’t invest? Do mortgage companies allow relatives to live in such a flat rent-free?
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