Flat upstairs using our roof as an unofficial roof terrace

Yorkie1

There are references in the thread to a) applying to the council for planning permission; and b) consent from co-freeholders to the use.

Surely they are two different things?

firsttimebuyers01

FreeBear said:

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.

From the current owner of the flat we are looking to buy. He gave them permission by way of an informal licence and the permission is between the people who signed the licence. It does not transfer if we buy the flat, so we would have to effectively give them permission again. Which we do not want to do. They could retrospectively apply for planning from the council 

firsttimebuyers01

FreeBear said:

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.

From the current owner of the flat we may be buying. 

eddddy

firsttimebuyers01 said:

From the current owner of the flat we are looking to buy. He gave them permission by way of an informal licence and the permission is between the people who signed the licence. It does not transfer if we buy the flat, so we would have to effectively give them permission again. Which we do not want to do. 

But the big 'real world' question is - What if you ask them (or tell them) to stop using the roof deck and they refuse?

Maybe because...

• They disagree with your solicitor's opinion that the consent has ended, or
• They don't care that the consent has ended, they want to use 'their' roof deck

So maybe they say "I don't really care what your solicitor has written in a letter. I'm not going to waste my own time and money getting legal advice either. I'm just going to carry on using the roof deck."



As far as I can see, your only option might be to try to get a court injunction against your neighbour to stop them using the roof. That will cost you many thousands of pounds, and it may or may not succeed.


This is one of the big problems with the 'shared freehold' set-up that you describe.


(And when you eventually try to sell, and declare that you had to take an injunction out against your joint-freeholder, I suspect that your flat might be virtually unsaleable.)





Edit to add...

Unless it's a planning enforcement issue - in which case the council will take legal action.

DE_612183

firsttimebuyers01 said:

FreeBear said:

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.

From the current owner of the flat we are looking to buy. He gave them permission by way of an informal licence and the permission is between the people who signed the licence. It does not transfer if we buy the flat, so we would have to effectively give them permission again. Which we do not want to do. They could retrospectively apply for planning from the council 

How can they apply for planning from the council to use what is effectivly your land?

FreeBear

DE_612183 said:

firsttimebuyers01 said:

FreeBear said:

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.

From the current owner of the flat we are looking to buy. He gave them permission by way of an informal licence and the permission is between the people who signed the licence. It does not transfer if we buy the flat, so we would have to effectively give them permission again. Which we do not want to do. They could retrospectively apply for planning from the council 

How can they apply for planning from the council to use what is effectivly your land?

The planning department doesn't take in to consideration who owns the land. If the application meets local policy, it would probably get granted.

BobT36

Can't you just build a pointy one that's impossible for them to use? 

ThisIsWeird

Some Q's still not answered:
How many 'Leaseholders' involved (who now own/share the Freehold?)
How do they gain access to the roof?
What does your survey say about the damage being caused?
Will you be proposing to have the roof rebuilt at your expense?*

* If so, might there be the potential for using a roofing material - eg EPDM - that is simply not designed for traffic? Coupled with an injunction to prevent 'further' damage from being caused by them. My understanding from this forum is that injunctions are both affordable and pretty straightforward; if the 3rd party can be shown as having caused damage or problems by their actions, an injunction would then make a repeated breach a criminal offence. But, man, this situation sounds fraught if an agreement is not reached.
Another possibility is for you to buy, and immediately make this issue a 'dispute' that the upper flat would need to declare with their sale. If they try and advertise it with a 'roof terrace', you make the EA clear on the true situation. I see nothing in what you've said that gives the upper flat more rights than you regarding the roof (the current arrangement being non-transferable), and you can demonstrate damage is being caused - ergo it's more reasonable that this should be prohibited. Are there any other issues being caused to you by this - can you hear them on the roof? Does the roof give them a bird's eye of your garden or patio? If the upper flat gain access only via a window, that would be pretty helpful.
On the issue of 'Planning', my understanding is that the PD would have had a say in this if, for example, it caused a loss of privacy to other homeowners (overlooking), but that bird has seemingly flown due to time.
Another angle - is there any potential for compromise over this? Eg, with the new roof, consider allowing them a small 'patio/balcony' area immediately outside their flat with a number of tight conditions, and it would need balustrading to prevent them going further. This part would need topping with a suitable acoustic and protective layer, and the remaining roof will have your skylight and a surface material not designed for foot traffic - for this concession, they'd need to contribute a sizeable amount to the new roof.

BungalowBel

Even if the Planning Permission is applied for and granted, they can't carry it out unless the owner of the land ( in this case a roof) gives permission. 

I think you actually need to clear up who is the owner.  A certificate from the owner has to be included with the Planning Application.