Window installation without freeholder's consent

Cuilean

My friend bought an upstairs maisonette about 25 years ago.  She renewed the lease 5 years later.  The freeholder was difficult to locate, but appears to be the wife of a solicitor (This detail is probably relevant).

 In 2009, my friend set up a home office in the loft.  After trying to contact the freeholder about it and failing to receive a reply, she had a Velux skylight installed by the company who came to spray insulation foam into the loft rafters.  We can’t find any certification for this work, just an invoice for insulation.  She didn’t apply for planning permission, or get the council to sign off on building regulations.

Work transferred my friend across the country, so the maisonette went on the market, the freeholder was informed, and my friend moved into rented accommodation in her new city.  An offer was accepted a few weeks ago, and an online conveyancing company was appointed to handle the sale. 

However, only now is she reading her paperwork.  The lease states she doesn’t own the loft, just the living space.  She’s definitely in breach.  I’m no legal expert, but I reckon the freeholder will not be happy, and the council will presumably need to be notified as she’s changed the structure of the building.  

My friend has yet to notify her conveyancer about the Velux situation, and I suspect this is something which could stop her sale proceeding or at least put a long delay on it.  I’ve urged her to hire herself a local solicitor with expertise in disputes, and prepare for some tense and costly negotiations, but having never owned a leasehold property, I can’t really advise further on what might happen next.

TL;DR: Friend had skylight installed in a leasehold property without consent.  How much trouble is she in?

eddddy

The main issue is that the loft doesn't 'belong' to your friend - it 'belongs' to the freeholder, and your friend appears to have no right to use it.

So the freeholder could legitimately say to your friend:

• Stop using my loft
• Get rid of the foam insulation you put in it
• Reinstate my roof as it was (by removing the window)

Alternatively, your friend could ask the freeholder to 'sell' them the loft (i.e. get it added to the lease). But the freeholder doesn't have to agree, and the freeholder can ask for any price they like - so it could be £20k or £200k.

(Tactically, it might be better not to mention that your friend has already converted the loft, as that will put the freeholder in a much stronger bargaining position.)


If your friend has told their buyer that the loft is included with the flat, the buyer will almost certainly find out that's not true, during the conveyancing process - and there's a good possibility that the freeholder will find out what your friend has done.


It might be best to withdraw from the sale, until the situation is regularised - either

• your friend buys the loft, or
• blocks access to the loft and re-advertises the maisonette as having no loft space 

Although FWIW, I came across a leaseholder selling in a similar situation who said to the buyer something like:
"You're only buying the flat - but I've converted the loft which is owned by the freeholder. So you you can use the loft unless/until the freeholder finds out. But don't tell your solicitor about the loft, and I won't tell mine."

davidmcn

I agree that the main issue is she's trying to sell a loft she doesn't own. At this stage she could just cross her fingers and hope that either the buyer's solicitor is sufficiently incompetent not to notice, or that the buyer is prepared to take a view - though neither is particularly likely, so she should be prepared to have to sort it out. I wouldn't actually stir anything up at this stage given that indemnity insurance might be an option (and you can't do that once you've alerted the freeholders to the issue).

I doubt the lack of statutory consents is all that relevant if the works were over 10 years ago. Again, insurance would be a more sensible solution if necessary, rather than contacting the council retrospectively.

Jeepers_Creepers

Cuilean said:

However, only now is she reading her paperwork.  The lease states she doesn’t own the loft, just the living space.  She’s definitely in breach.  I’m no legal expert, but I reckon the freeholder will not be happy, and the council will presumably need to be notified as she’s changed the structure of the building.  

My friend has yet to notify her conveyancer about the Velux situation...

I think that if your friend continues with the conveyancing, now knowing full well that she'd mistakenly included the loft in the sale particulars, she's surely asking for a hell of a lot of trouble. Even if she 'gets away' with it and successfully sells the flat, there is every chance that the issue will come to light later on, say if work needs doing to the roof by the freeholder. I can't begin to imagine the legal mess that could ensue. 

The only option I can see - other than taking that massive (and unethical, imo) risk - is to immediately inform the buyer of the situation; the loft is part of the freehold so is NOT included, but has been previously used by her. Almost certainly she'll have to take a hit on the price, but regardless of whether this buyer pulls out or simply renegotiates or even carries on with a shrug, she should have the property's particulars change to remove the loft. The EA can certainly inform potential buyers what eddddy suggests - "the current owner has used the loft as an office, but..."

It just cannot be considered 'part' of the maisonette for sale, tho'. And I can't see any legitimate way of getting away with that. 

FreeBear

eddddy said: So the freeholder could legitimately say to your friend:

• Stop using my loft
• Get rid of the foam insulation you put in it
• Reinstate my roof as it was (by removing the window)
  

Spraying foam around on the underside of a roof is probably the worst thing that you can do. It invariably causes the timbers to rot, and the only real way of getting rid of the stuff is to fit a new roof. Suffice to say, spray foam sticks like sh** to a blanket, so virtually nothing of the original roof can be salvaged.

If the freeholder does say "get rid of the foam", it is going to turn in to a very expensive undertaking.

lincroft1710

I think you should change the title of the thread to "Long time occupation of loft without freeholder's consent"

bucksbloke

I had an attic flat that was an attic conversion that had this. The loft was not accessible to anyone other than through my flat. 
Offer an indemnity policy. 

eddddy

bucksbloke said:

I had an attic flat that was an attic conversion that had this. The loft was not accessible to anyone other than through my flat. 
Offer an indemnity policy. 

An indemnity policy won't stop the freeholder demanding their loft back, and telling the leaseholder to remove the foam and window, and make good any damage.

However, the policy should cover the cost of doing those things - and hopefully, the loss in value of the property from not having a loft office any more.

So you still have to find a buyer who's prepared to take the risk of losing their loft office, and deal with the hassle of a large complicated claim with an insurer - who will probably be disputing the value of the loft office, etc.

I think a lot of buyers might want to walk away from that kind of risk, or at least expect a decent discount for taking on that risk.

(Although I guess it's always possible that the buyer won't understand the risk, and their solicitor doesn't explain it clearly. And in a couple of years, they post here complaining about the situation... )

Jeepers_Creepers

I'd assumed that the freeholder had had the foam applied, not the maisonette owner, your friend. 

Wow, so that's quite a bit of work carried out on part of the property not even owned by your friend :-). 

I don't know the facts about foam insulation - it seems to be one of these things that really divides opinion with little room for agreement. Some say it's a guaranteed recipe for rot, others that it's an ideal way to prolong roof life and add insulation value. Regardless of that, however, the situation is that your friend is now 100% aware that the loft is not hers. What sort of indemnity can protect against that?! "I'd like to take out a policy to protect me against litigation and the potential cost of replacing a whole roof - thank you. What? HOW much?!"

I can only suggest that your friend keeps her fingers crossed that the alterations she carried out are not detrimental to the property (and good chance they are not), and accepts that the loft is simply a lucky bonus for any purchaser of her flat; something that can hopefully be 'used', but without any actual entitlement. She needs to remove its existence from all written documents, and restrict its mention to a verbal "by the way, this is a nifty room you can probably carry on using, as long as you understand it ain't actually yours..."

davidmcn

eddddy said:

bucksbloke said:

I had an attic flat that was an attic conversion that had this. The loft was not accessible to anyone other than through my flat. 
Offer an indemnity policy. 

An indemnity policy won't stop the freeholder demanding their loft back, and telling the leaseholder to remove the foam and window, and make good any damage.

However, the policy should cover the cost of doing those things - and hopefully, the loss in value of the property from not having a loft office any more.

In practice, the freeholder is much more likely just to want some cash in return for formally agreeing to what's been there for over a decade, not for everything to be reinstated. They obviously don't care that much about it if they haven't even noticed.

eddddy

Jeepers_Creepers said:

 "I'd like to take out a policy to protect me against litigation and the potential cost of replacing a whole roof - thank you. What? HOW much?!"

Yes - I'd expect that the cost of indemnity insurance will be astronomical.

Especially, as a savvy freeholder will know that their loft is a valuable piece of 'real estate' for development. The day will come when they want to sell it - and they might decide to take a quick look at it, or send their surveyor to value it etc.... and find out what's happened.

The insurance underwriters will consider all these risks when deciding on a premium.