Loft extension and roof maintenance responsibility

FataVerde

My solicitor assured me the loft space and roof are demised to my property so I can carry out a loft extension with the permission of the freeholder (in this case co-freeholder as we are in a share of freehold situation). Here's the lease wording: "such demise to include one half part in depth of the joists between the floor of the maisonette hereby demised and the ceiling of the lower maisonette and the internal and external walls above the said level TOGETHER WITH the roofs and chimneys and stacks so far as applicable."

Two questions:
1. Does the wording state the loft and roof are demised to me? does this mean I can carry out an extension with the freeholder's permission (the permission requirement is stated in another clause)?
2. Currently the lease requires joint responsibility for costs for shared house structures. Will the maintenance of the roof become mine after a loft extension or still be shared?

SuseOrm

Ypud want that clarified in writing from your solicitor 

FataVerde

SuseOrm said:

Ypud want that clarified in writing from your solicitor 

This is what the solicitor sent in writing "The lease of the top flat includes the top half of the building from first floor joist level upwards including the roof space and the roof but not the air space above."

SuseOrm

write back asking the questions 

user1977

If this is an ongoing transaction, you ask your solicitor to clarify everything, as they're the ones who have actually read the deeds. Would your "loft extension" involve building into the airspace which you apparently won't own?

FataVerde

user1977 said:

If this is an ongoing transaction, you ask your solicitor to clarify everything, as they're the ones who have actually read the deeds. Would your "loft extension" involve building into the airspace which you apparently won't own?

The solicitor has been a major mistake. He literally does not respond to any emails/questions. He basically charged me £300 on top of conveyancing fees to answer questions about the lease, a sum he was conveniently vague on. I assumed it's an advance. Very disappointed bec he came highly recommended. 

BUT on the question of roof responsibility following a loft, I am interested in people's experiences rather. The solicitor can't tell me much because this option is not covered in the lease.

user1977

Other people's experiences won't help you much if their deeds said anything different from yours.

As I said, not owning the airspace may be an issue as you'd need the joint freeholder to agree with any extension into that space.

FataVerde

user1977 said:

Other people's experiences won't help you much if their deeds said anything different from yours.

As I said, not owning the airspace may be an issue as you'd need the joint freeholder to agree with any extension into that space.

My surveyor said there is enough height in the loft to allow for extension. The lease advisory and solicitor confirmed I own the loft space and the roof and this is the wording to indicate it. As far as I know, no lease ever demises the airspace to the property so isn't that the case with everyone's leases?

eddddy

Why has the question about airspace arisen? Has somebody involved with the property suggested that it's an issue?


To be honest, it's the kind of argument that can end up in court - with lawyers analysing the precise wording of the lease.  But in cases where the roof is demised to the leaseholder, it seems that courts usually agree that the airspace is demised as well (which is what you want).

Here are some example court cases:

The first category of case is where a lease of premises, such as a flat or individual unit, is comprised within a larger building. In broad terms, in such cases, a lease of the top floor of a building which includes the roof may well carry with it the airspace over the building, thereby entitling the tenant to enlarge the premises into the airspace: Davies v Yadegar [1990] 1 E.G.L.R. 71

Haines v Florensa [1990] 1 E.G.L.R. 73. As Woolf LJ said in Davies v Yadegar at 235, where the roof and roof space have been demised the “logical intent” would be that the airspace above was included 

Taken from: https://www.falcon-chambers.com/images/uploads/articles/Ups_and_Downs_of_Demises_Article_BignellJ_final_LT_Review.pdf

But obviously, the simplest solution is if you can get the joint freeholder to sign a consent document, without having to resort to everyone taking legal advice and potentially going to court. (You could even consider paying the joint freeholder a 'sweetener' in return for agreeing - because of all the potential legal costs that would be saved.)

eddddy

FataVerde said:

2. Currently the lease requires joint responsibility for costs for shared house structures. Will the maintenance of the roof become mine after a loft extension or still be shared?

It will be joint responsibility for the shared house structures, as they existed on the day the lease was granted.

But what does "shared house structures" mean? Is it a phrase used in the lease? For example, if the roof is demised to you - it's not really "shared", it's exclusively yours.



More generally, this is the type of detail that a sensible freeholder will want ironed out before giving consent. And leases and lease plans will need to be changed (varied) - which might cost a thousand or two in fees.

Plus there are no permitted development rights for flats - so you'll need Planning Consent. You'll also need to comply with building regs.

FataVerde

eddddy said:

Why has the question about airspace arisen? Has somebody involved with the property suggested that it's an issue?


To be honest, it's the kind of argument that can end up in court - with lawyers analysing the precise wording of the lease.  But in cases where the roof is demised to the leaseholder, it seems that courts usually agree that the airspace is demised as well (which is what you want).

Here are some example court cases:

The first category of case is where a lease of premises, such as a flat or individual unit, is comprised within a larger building. In broad terms, in such cases, a lease of the top floor of a building which includes the roof may well carry with it the airspace over the building, thereby entitling the tenant to enlarge the premises into the airspace: Davies v Yadegar [1990] 1 E.G.L.R. 71

Haines v Florensa [1990] 1 E.G.L.R. 73. As Woolf LJ said in Davies v Yadegar at 235, where the roof and roof space have been demised the “logical intent” would be that the airspace above was included 

Taken from: https://www.falcon-chambers.com/images/uploads/articles/Ups_and_Downs_of_Demises_Article_BignellJ_final_LT_Review.pdf

But obviously, the simplest solution is if you can get the joint freeholder to sign a consent document, without having to resort to everyone taking legal advice and potentially going to court. (You could even consider paying the joint freeholder a 'sweetener' in return for agreeing - because of all the potential legal costs that would be saved.)

Very good point. My solicitor mentioned airspace in his comment, but the term does not appear in the lease or any other document. With both my solicitor and the leasehold advisory confirming I own the loftspace and roof, I'm fairly certain it's a strong starting point. I had a chat with the co-freeholder, who seemed to agree I own the loft (she mentioned the current vendors were considering extending so she knows it's demised to me). She only mentioned the maintenance for the roof would then revert to me. I don't plan to do the conversion for a long while. I was just wondering if those with share of freeholds had any similar experience with roof maintenance responsibility. I should have left question 1 out.