Is loft included in lease?

justinsrival

Hi

We are in a neverending process to buy a first floor flat and we have a question around if the loft space is demised to us.

Its a conversion and the lease states:

“…hereby demises unto the Lessee first all that piece of land which for the purpose of identification only is more particularly delineated on the Plans 1 and 2 annexed hereto and edged red and being all that first floor maisonette known has [property address] and it is hereby declared that one half the depth of the joists between the floors of the upper maisonette and the ceilings of the lower maisonette the external walls above this level and the roof are included in the demise and that the wall of the front entrance and garden exit passages and staircases are party walls severed medially…”

Plans 1 and 2 are faded and you can see red on one side, but not the other so the roof space doesn't appear to be edged red, BUT the wording suggests it's included.  

Our solicitor is unsure, but says you wouldn't say the roof is included in the demise, and then not own the loft space. Are there any legal eagles that could offer a view?

canaldumidi

says you wouldn't say the roof is included in the demise, and then not own the loft space.

Your solicitor appears to be correct. However

Plans 1 and 2 are faded and you can see red on one side, but not the other so the roof space doesn't appear to be edged red,

Need to see the Plans, but generally Plans are two dimensional so I'm not sure how the roof space could be wthin the Plan, edged red or otherwise - unless Plan 1 is of the 1st floor and Plan 2 is of the roof space which would mean defintively that the roof space is included in the demise.

justinsrival

Thanks canaldumidi - this is the issue we are having.  Plan 2 shows the loft space, but the image looks like the colour has faded to barely noticeable.  The freeholder is a ltd company that just bought the freehold for investment so has no idea and is useless to be honest.  

It's not a deal breaker for us, but I suppose if there is a legal issue in the future, the fact the roof is described in the demise suggests we own that space in the same way it describes the walls.  It doesn't mention that we own the walls but not the space inside them for the bedroom,living room etc... 

user1977

When you say "it's a conversion" do you mean the loft has been converted and is now used as part of the flat?

canaldumidi

user1977 said:

When you say "it's a conversion" do you mean the loft has been converted and is now used as part of the flat?

Good question. I'd assumed a house converted into 2 maisonettes, but......

If Plan 2 is specifically of the loft space (2nd floor - assuming there's a ground floor comprised of the other maisonette, 1st floor comprised of your maisonette, and 2nd floor comprised of loft) then that further suggests the loft is demised to the 1st floor maisonette, especially given that it has a red border albeit partially faded.

Why else would Plan 2 be included in the Lease?

Do you also have a copy of the Land Registry leasehold Title? What does that say and what does that Plan show?

eddddy

justinsrival said:

The freeholder is a ltd company that just bought the freehold for investment so has no idea and is useless to be honest.  

I guess one approach is to ask the freeholder if they'd consider a lease variation to make it absolutely clear that the loft is demised to you - perhaps in return for a 'sweetener' payment.

But they'd also be legal fees on top.

But I suppose making that suggestion might give them the idea that you're desperate for the loft, and so they ask for a huge 'sweetener' payment.



Just to double check - given the way the lease is structured, is it definitely a conversion?  That type of lease is more usual with purpose built flats/maisonettes. (They sometimes look like a row of 2 storey terraced houses, but they were actually built as flats/maisonettes - with one on each floor.)

The reason I ask, is that if it's a row of similar purpose built flats/maisonettes, they may all have identical leases - so you might get more insight by looking at other people's leases.

canaldumidi

I'd be wary about raising this with the freeholder without definitive evidence the loft is demised to the lease. Could open a can of worms. If not for you if you walk away, then for the current owner....

eddddy

I'm not sure why it would open a can of worms.

The OP talks about "loft space" - there's no suggestion that the seller is doing anything with that "loft space".

And it sounds like the freeholder has already been contacted about this - presumably by the seller:

justinsrival said:

The freeholder is a ltd company that just bought the freehold for investment so has no idea and is useless to be honest.  

But I guess the OP needs to clarify.

justinsrival

Thank you 

We have just been told by the seller that he thinks the flats were purpose built, and there are no planning permissions/building regs sign off which would be the case if they were purpose built.  There are an original set of stairs at the back of the property which only make sense being there in the context that it was a purpose built flat.

I'm also not keen to 'poke the wasps nest' by asking the freeholder as you can imagine them asking money for it, which is what we are avoiding.  

The house next door (same type of building) was once two flats, that have been converted back to a house and think it is all making sense now!

I feel like we have a very strong case that the loft is included from the discussions: the wording in the lease, the plans include a floor plan of the loft, is 99% a purpose built flat.

eddddy

justinsrival said:

I'm also not keen to 'poke the wasps nest' by asking the freeholder as you can imagine them asking money for it, which is what we are avoiding.  

The problem is... if you ever want to convert the loft, you will probably need to 'poke the wasps nest'.

If you convert the loft and the lease really is unclear, you'll probably have a lot more difficulty selling it.

A typical buyer might not be too worried if a loft space is or isn't included in the lease - but they're likely to be worried whether an upstairs bedroom and ensuite is or isn't included in the lease.

(Because if it turns out that that the loft isn't included, the buyer might face the cost of 'undoing' the loft conversion - plus end up with a smaller flat.)

So it would be far better to try to get some clarity before you purchase - whilst you can still walk away.