Deed of variation for loft space

flossy12345

Hi all, 

First time here due to Solicitors Offices closing and a high amount of stress. 

We are selling a first floor maisonette and are close to exchange in the new year. One of the enquiries from our buyers solicitors, is that there are stairs that lead up into the loft, however the loft is not demised in the lease, and therefore could the freeholder enter into a deed of variation. 

When we sold the flat, we made it clear that the loft space is huge, and we had explored the option of purchasing it from the freeholder who was willing to sell it, and then seek relevant planning permissions. However, we also made it clear we do not legally own it. 

Our buyers knew this very early on in the process. Is the buyers solicitor asking for us to pay for a deed of variation and incur the costs associated with it? Surely that’s bang out of order. We are moving to a house, we aren’t going to benefit from it and we are selling the flat, not the flat including the loft space. 

Any thoughts? The next 12 days are going to be a nightmare thinking the chain could break, as we’ve found a house we love and are looking forward to moving in. 

Any advice appreciated! 

Thanks 

user1977

Are the buyers offering to increase the price to reflect that the flat will now include the loft? If not, then I think you just politely (or otherwise) decline their suggestion and tell them you're selling it as it is.

flossy12345

They are certainly not offering to increase the price to include the loft. We don’t own the loft space, we can’t sell something we don’t own. 

I think the Solicitor should be advising them of this. 

eddddy

flossy12345 said:

One of the enquiries from our buyers solicitors, is that there are stairs that lead up into the loft, however the loft is not demised in the lease, and therefore could the freeholder enter into a deed of variation. 

Just to be clear - do they mean a deed of variation to include the loft as part of the flat? Or a deed of variation relating to the stairs in some way?

Obviously, getting a deed of variation to include the loft as part of the flat means the same as "buying the loft" - so I guess the freeholder will want a significant chunk of money. (And it might be a tough negotiation.)

flossy12345 said:

However, we also made it clear we do not legally own it. 

Our buyers knew this very early on in the process.

It might be that the buyers didn't communicate that clearly to their solicitor. Or maybe the solicitor or buyer are taking a punt to see how you react.

Perhaps simply reply that the buyer was aware before making their offer.

And maybe ask your estate agent to phone the buyer and talk it through. That's often better than relying on stark solicitors' letters.



FWIW, I've come across a number of sellers who say things like "The loft isn't demised to us, but we've used it for years without anyone objecting, so you might get away with using it for years as well. But if you want to do that, it's best not to make your solicitor aware."

But in your case, it sounds like there is a staircase - so the mortgage valuer might have flagged it up for further enquiries.

user1977

Do "stairs" here mean an actual permanent staircase? I can see that looking like more of an anomaly than a hatch which you could opt to never open.

flossy12345

@eddddy thanks for your reply. 

So I think it means they want to include the loft in some way, but we never sold it with the loft included. Buyers were fully aware it would need to be purchased in order to own it. 

The staircase predates us and the owner before us so we have no idea who or why they put them in, and whether or not consent was given to do so. Why would a mortgage valuer flag that up? 

I think they are taking a punt, and the answer will be a stark no. It’s not ours to sell, the freeholder has said he will enter into a deed of variation if asked and it’s up to your buyer whether they want to pursue that. 

flossy12345

user1977 said:

Do "stairs" here mean an actual permanent staircase? I can see that looking like more of an anomaly than a hatch which you could opt to never open.

It is just a set of wooden stairs that lead up to the loft but they don’t meet building reg standards. 

user1977

flossy12345 said:

@eddddy thanks for your reply. 

So I think it means they want to include the loft in some way, but we never sold it with the loft included. Buyers were fully aware it would need to be purchased in order to own it. 

The staircase predates us and the owner before us so we have no idea who or why they put them in, and whether or not consent was given to do so. Why would a mortgage valuer flag that up? 

Because it makes the loft appear to be part of the flat. A mortgage lender might consider it a headache, for example, to have the right to only repossess downstairs, while their borrower has made full use of the loft as if it was part of the flat (or may even have set up camp there!)

loubel

It will be the stairs causing the issue. You can reply that you don't own the loft, haven't claimed to and it is not included in the sale. And if there weren't any stairs I'm sure that would be fine. But there are stairs leading from your flat to the loft and you presumably have no right to access the loft in your lease so the solicitors are quite reasonably questioning why the stairs are there, whether the freeholder knows about them and whether they breach the lease. If the valuer saw the stairs then they likely made a comment in the valuation about them and asked the solicitors to investigate and, as user1977 says, the lender will want clarification as to why the flat appears to have access to somewhere it shouldn't.  So the buyer's solicitor is unlikely to turn a blind eye to the stairs. Could you remove them?