Freeholder demanding premium for loft conversion permisson

Dogend1980

We are in the planning process for a loft conversion of our first floor apartment in a 2 floor house. We have a leasehold, and within our demise it is included: "the roof of the Property the ceilings and joists at roof level and the floors of the flat". My interpretation of this, is that it includes the roof space. However, the freeholder is claiming that the roof space is not included in the lease demise (adding that "rights are granted to the tenant to have a water tank in the roof space....which reflects the fact that the roof space is not included in the demise of the flat."). They are requesting a 30K premium. 

Would be interested to know if anyone has faced a similar situation, where the lease is ambiguous, do we have a good case for claiming the roof space is part of our demise? (the water tank article seems to be irrelevant - at the time of the lease (1980's) I assume the water tank was for the benefit of both flats - there is no longer a water tank). Also, a skylight (at some stage in the last decade or so) has been built in the loft, which I assume the freeholder is not aware of - so there seems to be a precedent for the leasehold to make adjustments to the roof and roof space). 

Bookworm105

without sight of the whole lease no one on hear can give advice that would have any reliability

a lease grants you the right to occupy a specific part of the building for a period of time, it does not give you the right to substantially alter the fabric of the building 

BonaDea

You need to check your lease.  Even if the loft space is part of your property, your lease may well prohibit alterations to your property without freeholder approval.  

Dogend1980

BonaDea said:

You need to check your lease.  Even if the loft space is part of your property, your lease may well prohibit alterations to your property without freeholder approval.  

Indeed. Yes, lease contains the standard text about requesting approval, which (by law) cannot be unreasonably refused. In this instance, if I refuse to pay the premium, freeholder could not give approval. So I would like to present a case that the premium requested is not justified (as it doesn't impact demise of freehold), therefore there would be no reasonable grounds for refusal (granted that an admin fee in the order of 2500 would need to be paid to freeholder)

MobileSaver

Dogend1980 said:

BonaDea said:

You need to check your lease.  Even if the loft space is part of your property, your lease may well prohibit alterations to your property without freeholder approval.  

So I would like to present a case that the premium requested is not justified (as it doesn't impact demise of freehold), therefore there would be no reasonable grounds for refusal (granted that an admin fee in the order of 2500 would need to be paid to freeholder)

To be frank, I think you are on a hiding to nothing to suggest that structural changes to the roof space do not impact the demise of the freehold.

Dogend1980 said:

the freeholder is claiming that the roof space is not included in the lease demise (adding that "rights are granted to the tenant to have a water tank in the roof space....which reflects the fact that the roof space is not included in the demise of the flat.").

Obviously it is not what you want to hear but I think the freeholder is correct and would win in what could be a very expensive (for you) court case. If, as you claim, the roof space is already demised to you then why would the lease need to grant you any rights to put something in part of the property that was already yours?

user1977

What's your solicitor's advice? Presumably they reported to you on the extent of the demise when you bought?

BarelySentientAI

Dogend1980 said:

My interpretation of this, is that it includes the roof space. However, the freeholder is claiming that the roof space is not included in the lease demise

Also, a skylight (at some stage in the last decade or so) has been built in the loft, which I assume the freeholder is not aware of - so there seems to be a precedent for the leasehold to make adjustments to the roof and roof space). 

Lots of assumptions and interpretations here - have you actually found out who made the alteration for the skylight, and if it was a leaseholder whether they did or did not have permission from the freeholder?  Otherwise this "precedent" is nothing of the sort.

And FWIW, I disagree with your interpretation completely and think that the wording you quote does not include the loft space outside your flat as part of the lease demise.  It doesn't explicitly exclude it, but interpreting that to mean it is included is a bit of a step.

Dogend1980

Thanks all for your opinions and advice, much appreciated as I think further on how to respond.

The solicitors opinion upon purchasing the house was that the roof space is included in the demise.

Further feedback from solicitors has been that the lease is ambiguous, so worthy of challenging.

I think the right to water tank is the key issue that may be the determining factor (in favour of the freeholder).

May the UK leasehold system soon RIP!

eddddy

Dogend1980 said:

May the UK leasehold system soon RIP!

I'm not sure how ending the leasehold system would resolve disputes about who owns lofts.

And even with a commonhold system, I'm not sure it would be sensible to let a flat owner do whatever alterations they want, without involvement/consent of other flat owners. (e.g. The owner of a ground floor flat in a 5 storey block starts removing load bearing walls. The owner of the top floor flat removes the roof allowing rainwater to permeate through the building.)

Dogend1980 said:

Further feedback from solicitors has been that the lease is ambiguous, so worthy of challenging.

Has the solicitor suggested how you challenge it?

As I understand it, your options include:

• Treating the demand of a £30k premium as 'unreasonable refusal to grant consent'. So you challenge the unreasonable refusal in court.

• Treating the £30k fee as an Administration Fee for granting consent. So you challenge it as an unreasonable administration fee at a tribunal.

In both cases, the court/tribunal would read the lease and decide what it means.


Or maybe you could apply to a tribunal for a 'compulsory lease variation' on the basis that the lease is defective, because it is not clear whether or not the roof/loft is demised to you - and therefore, it is not clear who is responsible for maintaining it.

The lease variation should then make it clear whether the loft is demised to you or not.

user1977

Dogend1980 said:

May the UK leasehold system soon RIP!

It isn't a UK-wide leasehold system, and in any event this doesn't appear to be much to do with the type of tenure and only about the description of your demise.