Question: We own a garden flat which backs on to a communal garden. We have a share of the freehold. We would like to dig a basement to enlarge our home, but we will need the consent of the flats above us, as well as planning permission. Our neighbours are likely to object to the noise and dust created.
Do we first need to establish that we own the ground underneath us? If our neighbours refuse consent, but we can show that the integrity of the building won’t be adversely affected, might a court declare us entitled to proceed?
Answer: Check your lease — most leases limit the extent of ownership to the floor slab. If that is the case, you will have to buy a lease for the basement, which may not be agreed.
Assuming that you do have a lease of the basement area, it will set out the restrictions on alterations. If the lease permits alterations with the consent of the landlord, he or she has to act reasonably and promptly, so if your neighbours refuse consent you could ask a court to declare they have acted unreasonably. But it is a complex area.
If the lease prohibits alterations in any circumstances, you will have to negotiate with the neighbours.
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If you have a question for Fiona McNulty, please email firstname.lastname@example.org or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a legal director in the private wealth group of Foot Anstey.