shared freehold, new lease drafting and loft not demised

Sguera

Hello, hope you can help me! I live on the ground floor flat of a Victorian house. The house is made of 2 flats, I own the ground floor flat and the front and rear garden. At the end of my garden, there is a division with fences and a parking space (there is not enough space for 2 cars) this space belongs to the Freehold. (we leave at the end of the road and my neighbor has never parked her car because she will have to walk all the way around the block of Victorian houses) .She doesn't have an entrance to her flat at the rear, as odd as it seems that's the lease. In one side of this parking space, I have a shed, I have always left half part empty. This space is divided from the garden with fences and there is a back gate at the end.
My neighbor has 62 years left on her lease and I have 152. Last year the Freeholder contacted us that wanted to sell the Freehold and considering the fact that I don't get along with my neighbor, I bought half shared of it. The loft of the property is not demised in our current leases that we signed when we both bought the property but I know for many years now that she wanted to do a loft conversion. She realized that she didn't own the loft space and I've told her you can have it as long as you are responsible for the roof and you surrender your right to park the car in the parking space. In this case, she would demise the loft in her flat and I would demise the parking space in mine on the new leases.
The issue is that she doesn't want to be responsible for the roof. I've asked to inspect the loft and after months of fighting, she has let me in. The day that I inspected the loft I realized that she was using this space as her flat, she reposition the hatch by the party wall, made a ladder by the wall for easy entrance, fitted the same carpet as in her flat, fitted a window and she boarded up the entire roof. it's a sort of DIY loft conversion. Both of our flats are 1 bedroom and that space is quite big, it makes the biggest room in her flat. I've taken some photos and then she called someone that said was her solicitor. This woman was shouting telling me that I couldn't take the photos and that I had no right to go to the loft or enter the property ever again. They threaten me to never come back and that they would call the police. I contacted my solicitor and she said that wasn't right, and to make the story short I also involved a civil case solicitor that send her a letter. In the end, that woman wasn't a solicitor but possibly her friend.
It's over a year since we bought the freehold and my solicitor has written to hers numerous times. In the last letter, she mentioned that if she doesn't want to take responsibility for the roof she will have to remove the window, boarding on the roof flooring, and entrance, and repair the roof if this causes issues. She said that the previous Freeholder give her permission to build, this was said in a letter by her solicitor. We contacted the previous Freeholder and he said that he had never given her permission verbally or in writing to build in the loft/roof or to even use it as storage. She then told me to remove the shed from the parking space and I don't have a problem with this as I have space in my garden. For the last few months, nothing has happened and I tried to contact her hoping that she would agree on the demise of the loft and take responsibility for it.
The issue I have is this, I won't have easy access to the loft, she won't let me in and I'm sure she will keep using it, she is quite a patronizing lady and if we go ahead this way, she will extend easily her lease (we signed a declaration of trust before buying the Freehold) so she will keep the parking space at the rear and also have access to the loft of which I'll be responsible for. I have never realized that she built as much in this space as I work during the days, even if she takes the window out and the boarding I won't be sure that she will do it again.
Also, during the last year I've done some work on the building and she has not reimbursed me for what I paid, I've filed in the yearly documentation of the freehold and she hasn't reimbursed me the fees. She doesn't partecipate financially when there is work to be done and I'll end up being responsible for everything.
It's practically impossible to deal with this woman, is there a way I can overturn the declaration of trust? I've no trust in her and I don't think is right that she extends her lease without taking responsibility for the loft/roof. Is there a way that I can push, seeing the circumstance a maisonette lease where we split the house into two separate leases? Is the court the only answer to this issue?

Any advice would be great!
THANK YOU

Mstty

Sounds like someone needs to bake a cake and make a big pot of tea for some civil face to face time.

NameUnavailable

You need to find a way to work together because if not you are seriously damaging the value and saleability of your properties.

What did the deed of trust state? If your neighbour wants to extend their lease they need your co-operation. As you have both bought the freehold you should really have granted new 999 year leases with peppercorn ground rent.

One or two? off road parking spaces could be a fair trade for use of the loft (what else can you do with it?). Presumably the maintenance is shared as it stands. Depending on the current state of the roof I guess it's difficult to say whether asking the neighbour to take full responsibility for it is fair or not.

Sguera

Hello, Thank you for your reply.

It's impossible to communicate with her, I've tried to negotiate I've told her I can give a percentage towards a future replacement of the roof when needed. The responsibility of maintenance should be on her, all roof is boarded up for minimal repair we will need the scaffoldings because it can't be repaired from the inside any longer, there is a ceiling.
Considering is over one year now, I have also tried to propose mediation services. She denied all my offers and negotiations.

This is what the Trust Deed says
Each party is entitled to and each party agrees to a lease extension of their leasehold flat in the Property and to be extended so that each flat has the same number of years remaining; without either party having to pay a premium for the lease extension; each party bears its own legal costs in connection with all lease extensions.

The issue is that I signed this document and things were different a year ago. I knew she was using the loft as storage but I didn't know that she had built it to this extent, it's practically a room now. Also, she and her solicitor have been dishonest in many different letters. In one of his letters, he even mentioned an eventual fitting of a window that is already there. They are not being honest and it's impossible to deal with her

Sguera

Sorry, One parking space, the other is already mine. it's a space called off-street parking on the leases. It's not divided and is longer than wider, the only way to park two cars will be vertically maybe but it will be a problem for the first car parked. None of us has ever parked there.

NameUnavailable

Well the lease still stands regardless although you would have to go legal to get her to vacate the loft and return it to how it was. That's going to be very costly and very messy.

Can you access the loft from a communal landing or is access within her flat only? (if it's not then you could start using it!).

I'm not sure what level of repair can be carried out from inside a roof, most has to be carried out from the outside I think (tile replacement etc).

Sguera

I can't access the loft, she is the only one that can, the hatch is in her flat.
This is the issue, she doesn't let me in and inspect it either. Last time I had to ask constantly for 3 months before I got in and it ended up with a massive argument.
The issue is that she will keep using it and in this case, she will have both, a loft and parking space.

Can I let her stay with a short lease? Tell her until we find a solution there won't be a lease extension. 
In less than 3 years' time, she will have 59 years left, her situation will be even worst on that front.
We can't extend her lease without drafting a new one.
Would I be able to do this without being sued?

ThisIsWeird

Wow. 
I can't say I fully understand the parking situation - some details seem contradictory - but that just serves to grey the whole situation regarding the loft, which is the main issue here?
Has your solicitor determined what each flat's responsibilities and entitlements are regarding that loft space, by checking carefully the wording in each set of deeds? That's the starting point.
Usually, the R's and E's are the same for each flat. Ie, if the flats had conventional - vented - heating systems, then you'd expect the loft to contain the water tanks. You'd also expect the responsibility for its upkeep to the shared.
So, details.
Although the terms might not outlay the use of the loft for more than storage, there is still an implied shared right - if you are allowed to use it for water tanks, then it's clear, by implication, that one person should not take it over as habitable space.
(My first property was a top floor flat in an old Edwardian house. Two of us had water tanks in the loft, but the hatch was in my flat. When the neighb below called out plumbers to sort his system, they gained access to my flat without even asking. Not sure of their entitlement without permission, but it would have been their ultimate right.)
Any idea how she managed to do this work without you noticing? And - very important - WHEN was it done? Is it still within actionable time by Planning or Building Control?
Do you know who carried out the work? If the exposed roof rafters have been covered up by an incompetent person, there is a very good chance that they have reduced or blocked the required air flow over these rafters, so they'll be far more prone to rot.
If your solicitor can determine a shared responsibility and shared rights, then - in theory - you could pursue this legally and force her to provide access on reasonable request. So, what do both sets of the deeds say?

Mstty

You need professional advice and a dose of let things be.

You don't know the person's situation.financially.or what they may be going through.

Not that any of that is an excuse for burying their head in the sand when it comes to confrontation and costs of repairs.

If there is no communication then a money claim online may be a good route to claim back the repair costs they are responsible but to be honest the roof issue I would let that go. Unless it's a jealousy thing that they have some space for free?

Sguera

Thank you for all your answers, it’s helpful!

The Parking space is at the rear of the garden, the gate opens to the opposite road of the front entrance. I don’t own a car and she does but parks at the front. We live on number 23 and the last house of the road is 27.
she doesn’t have a direct entrance to hers from my garden, if she parks on that space she will have yo walk all the way around the block of 27 Victorian houses. The space is longer than wider, the gate 2 doors open inside the only way to park 2 cars is vertically unless is very small cars in size.

There is no mention of the loft in the leases, it’s not demised. The window and flooring was apparently fitted before 2012, that’s what her solicitor said I don’t know how I didn’t realized, the builders didn’t use scaffolding. The repositioning of the hatch and the boarding on the rafters was done during the first lockdown. 

Back in 2019 she asked me to help her to bring two arm chairs in the loft, she still had the old hatch and the roof was exposed. Back then I thought the loft belonged to her.

The issue I have is just how you wrote it, an incompetent could have covered the rafters and blocked the air flaw so they will be more prone to rot. How can I be responsible for this?  No I don’t know who did the work unfortunately. 

The loft needs to be demised anyway because is a living space, there are also issues with the building insurances in this case. If something happens we won’t be able to make a claim because of the extension of the work she has done. 

On the current leases the responsibility of the roof was of the freeholder, (us two at the moment) the following point after the roof is the insurances where it states that we both need building insurances. There is not a single word written about the attic.

No I’m not jealous of the space and I really want to do the exchange I can’t do anything with the loft but how can I take responsibility for something I’vent done. She will gain quite a bit of demise in her property, considering she already built on the roof it would be fair she would take responsibility for it or at least 3/4 of it. 

Could I be sued if I tell her I won’t be co-operate with her lease extension until we find a middle ground? (Can I still do this considering I’ve signed a Trust Deed?)

user1977

Sguera said:

there are also issues with the building insurances in this case. If something happens we won’t be able to make a claim because of the extension of the work she has done. 

Who's told you that?