In times of high property prices and increased Stamp Duty Land Tax, more and more property owners (both occupiers and investors alike) are considering basement extensions. Whilst these can be rewarding in terms of added space for a property, careful planning, consideration and works must be undertaken to ensure that things run smoothly and to avoid basement disputes.

We consider the possible basement disputes that could arise both before, during and after basement works in separate sub-headings below.

Planning permission

  • Objections – Whilst everyone hopes that their neighbours will be supportive of their plans, unfortunately this is often not the case. Neighbours will be particularly concerned if a basement is to be constructed as they will want to ensure that their property will not be effected, whether structurally or otherwise. We can assist, in conjunction with your planning consultants, in dealing with those objections, as well as preparing objections on behalf of an aggrieved neighbour.
  • Enforcement Notices – in circumstances where basement works are carried out in breach of planning permission, the Council may serve an Enforcement Notice on you. The time limit for appealing Enforcement Notices is strict. We can advise both on the timing of the deadline for appeal as well as working in conjunction with your planning consultant to appeal the Enforcement Notice if appropriate.

Identification of boundaries

The general boundaries rule relating the Land Registry plans means that it is often not possible to identify the precise location of boundaries. In order to avoid possible disputes, it is recommended that advice is sought before work is commenced so as to identify your boundary. Our Property Litigation team are well equipped to consider historic deeds relating to the property to advise, so far as possible, where that boundary may lie. They can also engage the service of a specialist boundary surveyor where necessary.

Party Wall arrangements

As many people will be aware, there are Party Wall arrangements that must be put into place before basement works begin. We have and continue to connections with specialist surveyors who can assist you in putting these arrangements into place, and we can assist if there are any problems with your neighbours in dealing with this process.

Overage provisions

In certain circumstances, particularly regarding land with development potential, sellers will retain a right to be paid monies for development, even after they have sold the land. Our Property Litigation team be instructed to advise whether such an overage provision is recorded against your title, and consider whether such provision is binding on you. This is particularly important when you are considering the acquisition of land, or whether a development is financially viable.

Restrictive covenants

As well as overage provisions, some titles contain restrictive covenants preventing development taking place in whole or in part. Our Property Litigation team can consider and advise who has the benefit of the restrictive covenant, whether it could be binding on you and what action can be taken, if any, to remove that restrictive covenant so as to try and avoid a basement dispute.

Leasehold issues

Leases can be a minefield in so far as development is concerned. Examples of this include where a landlord has acquired property subject to a lease, which the landlord wishes to develop. Our teams can advise on whether such leases can be terminated, including whether a tenant has a right to renew their lease under Part II of the Landlord and Tenant Act 1954, and the grounds on which the landlord may seek to terminate the lease, including, for example, whether the landlord’s proposed development works to a basement will be sufficient grounds for objecting to a new tenancy.

Should a surrender be agreed with the tenant, then our Commercial Property team can ensure that is properly documented for you so as to safeguard your investment.

Our Property Litigation team can also consider the terms of the lease and whether the areas demised to the tenant include the basement, which would prevent development from taking place.

In terms of a tenant wishing to carry out works, we are experienced in acting for either the landlord or tenant as to whether the tenant’s proposed works fall within their demised property, whether the lease allows for those works to be carried out and in dealing with licences for alterations. We can also consider and advise on whether consent to works can be reasonably refused.

Injunctions and damages

In circumstances where works may:

  • trespass on your property
  • threaten to cause damage to your property
  • infringe upon rights reserved to your land, including restrictive covenants and easements
  • extend beyond a tenant’s demise (in the case of a tenant’s works)
  • extend into a tenant’s demise (in the case of a landlord’s works).

Then our Property Litigation can take prompt action in threatening and issuing injunctive proceedings to prevent the works from being carried. An injured party must however act promptly, ideally before works commence, if injunctive relief is required. Damages claims can also be brought in the alternative or in addition to injunctive action.

Likewise, we can act for the developer/land owner if they are threatened with injunctive and/or damages claims in respect of extension or basement disputes.

Problems with contractors

In the unwelcome scenario when a contractor does not complete the works to appropriate standards or fails to otherwise fulfil their contractual requirements, our disputes team can advise and act in bringing a claim against contractors, or indeed defending a claim for contractors. Again, prompt action must be taken so as not to fall foul of any deadlines in the construction contract.

Contractor insolvency

Unfortunately there are times when contractors become insolvent during the court of development works. Our disputes team has a wealth of experience in dealing with the consequences of such an insolvency situation in order to try and salvage the position if possible.