Defective Lease

minx24

Hi there,

I would appreciate some advice please.

I am selling a one bedroom first floor flat with a balcony.
It has come to light that the balcony is not referred to in the lease and we are currently seeking a deed of variation to amend this at my cost.
The landlord is the local council and although they are not disputing the fact that the balcony belongs to the property, they are some what reluctant to complete this deed of variation :mad:
What my buyers solicitor has said is that unless the lease confirms ownership of the balcony, the property is worthless and therefore unsaleable
Surely if this were the case I would never have been allowed to buy the property or subsequently borrow further funds against it?
Who can I hold accountable for this? The council? What would be my chances of seeking compensation?
If the property is indeed worthless and has been since I purchased it does this mean that any contract ie mortgage and loans are unenforceable?
Sorry for the barrage of questions as you can see I'm very confused by all of this as I have lived there for 7 years totally unaware of this issue.

Many thanks in advance for your help.

Jen x

CloudCuckooLand

Have words with the solicitor who helped you purchase..?

minx24

Would they be liable for costs as the issue was not raised when I bought the property?

Many thanks
Jen x

CloudCuckooLand

minx24 wrote: »

what my buyers solicitor has said

It could be that the current buyer's solicitor is doing a better job of protecting their interests, than your's did for you.

Whether this constitutes a liabilty will depend on the detail.

Its at least worth having a conversation and seeing how fast they hang up the phone on you to gauge their gut reaction...

Jenniefour

I doubt whether the property is 'worthless', I think what the buyers solicitor is saying is that this issue needs clarifying in order to proceed with the sale (or any other sale). As others have said, get back to the solicitor who did the conveyancing for you when you bought and dig out any paperwork you have related to this. It is possible - if your previous solicitor indeed knew about the existance of the balcony when you purchased the flat - that they were in error by not insisting this be sorted out by the previous owner and the council before exchange. Whether or not that is the case it does need to be sorted out now - and if the solicitor who acted on your behalf when your purchased has made an error then that means you may have a case for recouping costs from them for settling all this. And it appears that the council did not have their act together when they first sold the flat to a private buyer, their legal dept have not done a thorough job on it.

And I am assuming that the balcony is not a recent addition put on by a previous owner without the proper authorisations, permissions and so on - so the council should be co-operating in getting the variation to the lease sorted out. Get your solicitor to keep pressing them on this - they are holding up your sale. Good luck with that one.

minx24

Hi there,

Thank you for your input it is much appreciated.
I'm not sure I'll have a leg to stand on really and may just be wasting my time I've done a lot of reading today and the general opinion seems to be that the law is always changing and although something is an issue now it may not have necessarily been an issue at the time.

The council are dragging their heals with this one though and keep telling us it does not need to be in the lease, my buyers solicitor is adamant that they want it which is fair enough.
Can the council refuse to enter a deed of variation?

The balcony is an existing feature of the original build and the property has changed hands from the council to another buyer and then onto myself, it was not bought up on either of those occasions.

This sale has been going on for nearly 6 months and he is my second buyer, I'm at my wits end with it :mad:

Thanks again

Jen x

ILW

Why would a balcony be any more of an issue than say a window or door, which are not mentioned in leases?

I would have thought is was just part of the external fabric of the building.

Jenniefour

ILW wrote: »

Why would a balcony be any more of an issue than say a window or door, which are not mentioned in leases?

I would have thought is was just part of the external fabric of the building.

Balconies are an issue - because local planning departments, when people apply for planning permission to put on a balcony, treat them almost as though they are an enclosed extension to the property i.e. living space. And any outside space that actually belongs to the owner of a leasehold flat - e.g. a patio in a ground floor flat needs to have a deed of variation. Otherwise, legally, it leaves a question about whether it belongs to the flat in question.

In this case the balcony was there from when the block was constructed so it appears the council were remiss in not getting this straight when they first sold on to a private buyer. It does need to be added properly onto the lease.

Jen - I would be pushing the council a lot on this one - their own planning and legal departments would be able to give them some useful clues !! You've done the right thing by offering to cover the costs of the deed of variation - I just can't see what the hold up is, unless they have a massive work load. Would it help - if your solicitor has it - to send the email/letter from the buyers solicitor pointing this out? Or to find out who's dealing with this at the council and give them a ring yourself? They might get on with it if they know you are going to call twice daily for an update on where matters stand !!

And I would be putting it to them that although they think it does not need a variation of the lease your buyers solicitor is insisting on one - so, in that case, what reason would they possibly have for refusing to do it?

Jenniefour

Jen - just checking. When contact with the council was made about this was it a phone call? Reason I'm asking is because most queries are now picked up by general administrators who are normally very efficient and knowledgeable about ordinary queries but need to ask a senior colleague about something a bit more complex. So contact might not have been directly with someone who had the necessary expertise to deal with it - and may then not have asked someone senior the right question. Needs to be dealt with by some pretty senior - and the legal department there who deal in property matters are probably the people with whom you need to be discussing all this.

eanick

I have come accross this a couple of time on blocks that I have sold flats in. The issue was that the freeholder of the building would not include the balcony in the lease as they wanted control over it. They did not want or have access to the balcony but by retaining ownership they were able to control what happened on it - the example given that sticks in my mind was that if someone wanted to take a motorbike to bits on the balcony it would be to the detriment of the other residents and as such the freeholder could step in and put a stop to it.

I don't think this really helps at all but is another angle on it. This flats sell on a regular basis and whilst solicitors may question it as far as I am aware it has never stopped a sale proceeding.

N

timmyt

minx24 wrote: »

Hi there,

I would appreciate some advice please.

I am selling a one bedroom first floor flat with a balcony.
It has come to light that the balcony is not referred to in the lease and we are currently seeking a deed of variation to amend this at my cost.
The landlord is the local council and although they are not disputing the fact that the balcony belongs to the property, they are some what reluctant you don't explain why...proably they are just typically Council slow...you know 4pm home time employees, the lazy lot! to complete this deed of variation :mad:
What my buyers solicitor has said is that unless the lease confirms ownership of the balcony, the property is worthless why what value does a balcony add? and therefore unsaleable why because without a balcony no one would buy it? nonsense as even without the demise of the balcony the Landlord would never say don't walk out on it, nor would they bring a crane along and remove it...so in practice no issue, your lawyer needs to make that point....and check whether your lease gives you a right to use it...maybe using another word for the balcony .
Surely if this were the case I would never have been allowed to buy the property or subsequently borrow further funds against it? Indeed, your Buyer knows nothing
Who can I hold accountable for this? The council? No, maybe your previous lawyer but that will be hard and slow to prove ... though shame you just didn't stick with your previous lawyer, makes a sale fare asier if they were ok at what they did What would be my chances of seeking compensation? None
If the property is indeed worthless it is fine and has been since I purchased it does this mean that any contract ie mortgage and loans are unenforceable? No, god you sound as silly (with respect) as the Buyer..he is rubbbing off on you
Sorry for the barrage of questions as you can see I'm very confused by all of this as I have lived there for 7 years totally unaware of this issue.

Many thanks in advance for your help.

Jen x

Tell us why the COuncil are reluctant, though your lawyer needs to tell the Buyer that they can take over any variation, with you giving them an allowance for the costs, thus lettign exchnage happen. as in practice the Landlord cannot do anything about it!