The residential leaseholder’s interest in construction operations

Publication Date08 Jul 2019
AuthorDavid R.F. Sawtell
SubjectProperty management & built environment,Building & construction,Building & construction law,Real estate & property,Property law
The residential leaseholders
interest in construction operations
David R.F. Sawtell
Lamb Chambers, Middle Temple, London, UK
Purpose The owner of residentiallong leasehold can be signicantly affected by constructionoperations
to the building, whether during its initial constructionor its subsequent repair, renovation or improvement.
This paper aims to consider howa leaseholder has an interest in such construction operations and the extent
to which thisis taken into consideration in their procurement.
Design/methodology/approach The paper is a general review of how construction law interfaces
with property law interests,rights and obligations in the case of a residential leaseholder. The rst part of the
paper outlines the issuesraised by construction operations. The second partof the paper queries the efcacy
of any right of redress the leaseholdermight have in respect of construction defects. The thirdpart considers
the limited nature of the leaseholders right to be consulted about construction operations. The paper is
predominantlydoctrinal in approach, although it references socio-legalresearch. The paper also contrasts the
Englishlaw position with Australia.
Findings The paper concludes that leaseholders have limited input into the procurement of construction
operations despite their interest in them. Propertylaw can be used to regulate c onstruction law operations.
Originality/value To date, the literature dealing specically with the position of leaseholders,
consultation obligations and construction operations has been limited. This paper brings togetherproperty
law and constructionlaw in analysing the ndings of the Hackitt Report into the GrenfellTower disaster.
Keywords Defects, Leasehold, Property law, Construction law, Defective premises act 1972,
Paper type General review
Residential leaseholders are frequently those most affected by construction operations
to their homes and ancillary communal areas. Defects in the workmanship of that
construction, inadequacies in their design, concerns about the safety measures adopted
or decisions about the structures long-term maintenance, renewal and replacement will
frequently directly affect them. The question of the regulation of construction
operations, as experienced by the occupiers of multi-owned properties where the
freehold interest has been separated from the leasehold interest, is entwined with their
landholding, management and occupier status.
The regulatory issues that arise from the construction and then the subsequent
conveyance and occupationof the leaseholdersbuilt environment often fall to be considered
as two distinct areas in the law, both as a matter of legal taxonomy and for legal
practitioners. The law relating to construction operations and any resulting liability for
defects arising from the same is typically treated as an aspect of construction law,which is
dened by both its subject matter andthe characteristic of construction operations that, as
the works proceed, they become irretrievably part of the property of the owner of the land
(Clay, 2015, para. 1-001). It is deeplyestablished, in both civil law and common law systems,
that once construction materials are attached to the land, they become part of it (quicquid
plantatur solo, solo cedit). On the other hand, issues of land tenure and estates in land are
appropriately regardedas falling within the purview of property law.
Received31 December 2018
Revised31 December 2018
Accepted3 March 2019
Journalof Property, Planning and
Vol.11 No. 2, 2019
pp. 108-120
© Emerald Publishing Limited
DOI 10.1108/JPPEL-12-2018-0037
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