Flat upstairs using our roof as an unofficial roof terrace

firsttimebuyers01

Hi all 

Was wondering if anyone could help. 

We are about to exchange on a ground floor flat which is in need of renovation. The flat upstairs have been using the flat roof on the extension as an unofficial roof terrace. It is undemised and they do not have building regulations nor planning permission. 

They have been using the roof as a roof terrace for at least 7 years. Our survey said that it is causing damage to our property and we should stop them using it immediately. We also will need to replace the roof as part of the renovation and want to put a skylight in where the new roof terrace will be. The neighbours want to rebuild the roof terrace with proper planning and building regs after it has been removed but we do not want them to do this. 

Has anyone been in a similar position where they had to stop their neighbours using the roof terrace? 
 

Legally we can withdraw their permission. However we are concerned that they can apply for planning retrospectively. 

Any advice or help would be greatly appreciated! 

FreeBear

firsttimebuyers01 said: Legally we can withdraw their permission.

Do they have permission, and if so, from whom ?

Unless permission has been granted, the freeholder should be enforcing any restrictions on use, and I would have thought that repairs to the flat roof would fall within their remit. You need to get some proper (paid for) legal advice on your options.

eddddy

firsttimebuyers01 said:

It is undemised and they do not have building regulations nor planning permission. 

If it's un-demised, essentially it belongs to the freeholder.

So it's a case of finding out if the freeholder has given consent for the roof to be used as a roof terrace.

But even if no consent has been given so far, there may be nothing to stop the freeholder giving consent for it to be used as a roof terrace in the future, especially if it's on condition that it's adapted to be suitable for that purpose.

firsttimebuyers01 said:

We also will need to replace the roof as part of the renovation and want to put a skylight in where the new roof terrace will be. 

You've said that the roof isn't demised - so probably belongs to the freeholder. Has the freeholder indicated that they will let you replace their roof, and put a skylight in it?

I suspect the freeholder could get a bigger premium (i.e. more money) from allowing the flat upstairs to have a roof terrace. So the freeholder might prefer to go with the roof terrace option, rather than your skylight option.

Rodders53

firsttimebuyers01 said:

We are about to exchange on a ground floor flat which is in need of renovation. 

Don't !!

Not before this issue is legally and irrevocably resolved to your satisfaction, at least!

Probably best to walk away and find another dwelling to buy.

penners324

You're buying a leasehold property by the sound of it.

It's the freeholder who has the final say in this. 

firsttimebuyers01

Thanks very much for your comments. It is share of freeholder. So we would be co-freeholders. The current owner has granted them permission but once (and if) we become the legal owners then we will be withdrawing permission. The permission does not transfer with the sale of the property. 

We have received paid for legal advice and he has confirmed that legally they do not have a right. However the only way around would be for them to retrospectively apply for planning permission from the council because it has been in use for 7+ years. The upstairs owners could also make our renovations tricky in retaliation. We have been looking for a property for over two years and have had 9 rejections despite offering over asking each time and now this! Very demoralising 

DE_612183

Sounds like you will make an enemy of your upstairs neighbour - not a great start.

firsttimebuyers01

DE_612183 said:

Sounds like you will make an enemy of your upstairs neighbour - not a great start.

Yes not good. Though they are wanting to sell their flat too so we are trying to sort it for their buyer 

eddddy

firsttimebuyers01 said:

Thanks very much for your comments. It is share of freeholder. So we would be co-freeholders. The current owner has granted them permission but once (and if) we become the legal owners then we will be withdrawing permission. The permission does not transfer with the sale of the property. 

How have you concluded that? What form does the permission take?

If the freeholder(s) give consent for something, it is generally permanent. Is there a clause in the consent document that says consent ceases when a flat is sold?

firsttimebuyers01 said:

It is share of freeholder. So we would be co-freeholders. 

Then this will probably be a huge can of worms. (Unless there is a Declaration of Trust in place.)

The co-freeholders won't take enforcement action again the upstairs leaseholder for using the roof terrace...

... because the upstairs leaseholder is one of the co-freeholders. (And they won't agree to taking enforcement action against themselves.)

So in reality, it will become almost impossible for one party to 'force' the other party to do anything at all.


Realistically, the only way of achieving anything is by negotiating an agreement - which might involve bunging the other party some cash.

NameUnavailable

Depending on what has or hasn't been formally agreed between the current leaseholders/freeholders, I think in that position I would speak to the people upstairs directly, explain that if you buy the flat you don't want them using the roof as a terrace and that you will carry out repairs/improvements which will effectively mean it can't be used as such anyway. See what the response is.

If it's 'oh yes fine, that's great, and anyway were selling up so we'll make sure everyone knows it's out of bounds' then you can feel better about proceeding, if it's 'what hang on!!' then you might want to look for another property.

There are also issues around the cost of works - if you are happy to pay for the work yourselves then it shouldn't be an issue but if the lease says costs are shared and you want them to pay towards the work you might have another challlenge.

Another thought, how are they getting onto the roof? Is there are door from their place or are they just climbing through a window?

propertyrental

How many flats/joint freeholders? Just the two, or more?

If more, how are decisions made? By majority vote? Unanimous decisions?

How was the permission granted and by who? 

By the current leaseholder/flat owner? I doubt they have authority to grant permission - only the freeholdwer can do that (so see my Q above)

Orally/informally or in writing? By a formal Deed?

Planning Permission from the council is an entirely separate issue to permission by the freeholder.

But I agree with others - do not Echange until there is formal agreement that you'll be able to do what you want (eg skylight) and neighbour can't do what you don't want (eg use roof as a terrace).