Roof Terrace - not in title - possible problems ?

MickyLuvsMac

Hello all, I am thinking of putting an offer in for a 1st floor flat (top) which has access to a terrace - a flat roof above the kitchen -  the ONLY access to it is through the flat but this is what is written in the sellers pack:

1. Please note that the Seller informs us that they use a roof terrace, but this is not included within the Seller’s Title Plan. There is also no reference of a roof terrace within the Lease dated 7th February 1985. Therefore, as the Seller appears to have no title to the roof terrace, this will not form part of the sale. Any Buyers will need to carry out their own due diligence regarding this and the contents of the legal pack.
   
   Not sure whether I'm worried about nothing - I suppose at the end of the day it is just a roof? 

The previous owner has been using it for over a decade with no problems.  If i go for the flat I will become a 1/3 share owner of freehold - so I guess at some point I could get the lease changed ..if it was worth it.  Any thoughts?  And many thanks in advance. 

eddddy

So, as you probably realise, the seller is saying that they use the terrace and nobody complains - but that is not a guarantee that nobody will complain in the future.

But is the roof designed to be a terrace which people can walk on?

If it's just a 'standard' flat roof, it won't be designed to walk on - and walking on it could damage it, and you might have to pay for the damage that your walking has caused.

MickyLuvsMac said:

If i go for the flat I will become a 1/3 share owner of freehold - so I guess at some point I could get the lease changed ..if it was worth it.

So in simple terms, the joint freeholders probably own the roof terrace (so you own a 1/3rd share of it).

If you want your lease changed to allow use of the roof terrace, the other 2 leaseholders could say any of the following...

• Yes - we agree to change your lease for free
• Yes - but we want £5k or £10k or £50k or £100k (or whatever) premium
• No

IN addition, the legal costs for varying the lease could be £1k to £2k

Emmia

If there was no roof terrace, would you pay what they're asking for the flat, or even consider buying it?

Also, if it's not designed for walking on, and the seller has been doing so for a decade, it's probably already damaged, even if that damage isn't showing... If you use the terrace (or just own the flat) and it tips from no damage visible to visible damage, you'll be the one needing to pay to rectify that.

gm0

Don't imagine you can just change the lease to keep your share of costs 1/3 and move it to 100% owned (demised) to you.

It's a nuanced judgement for the other 2/3 of the freehold.  Move that object from freehold communal to demised. 
In doing so perhaps option

a) you pay legal costs to do it and ensure the lease meaning now dumps 100% of the maintenance and future replacement costs liability onto you -  a possible win for them - now that it is going to be yours - in your lease. 

b) keep costs the same - but now they have an interest (cost liability) based on your behaviour in your demised space.  So clauses in restricting what you can do with it are sensible.   No craning in hot tubs, summer houses, large fixed planters/roof gardens.  Dance parties for 100. Yet it's now "yours" - tricky.
Still perhaps need clauses restricting your nature of usage. 

c) just leave the lease (and cost allocation alone). 

As now 2 of 3 can agree to "fix" the roof when it breaks although they have to ask permission (or legally gain necessary access from you via flat) and/or scaffold the building.  Or they can sue you to pay for it because you caused damage by something you did (without permission under the lease).  Nobody wants those scenarios to happen.  But they could.  And the lease needs to create minimum extra hassle.

Such as a risk of having an unwilling or insufficiently funded future lease owner upstairs solely now responsible for fixing it when it later fails. Who can't or doesn't.  Which is problematic while water comes in.

Creating a legal "slice" of surface roof terrace above a "communal roof" layer above a "demised" flat layer - doesn't help much in terms of future issues and risks around commissioning of works which will destroy/replace both elements.  So I don't think much of that as a workaround either.

donutandbeer

I would reconsider my offer if I initially was lead to believe the roof terrace was included in the title. Probably won’t lower the offer too much but I would feel tricked if I don’t lower it a bit.

Make sure the roof terrace is actually built to be a roof terrace. A friend of mine owns a ground floor flat, the first floor flat above them has a roof terrace on the flat roof of my friend’s flat. Apparently before my friend bought the flat, someone on the first floor flat fell through the roof terrace, because it wasn’t built to be used as a roof terrace, the first floor flat owner just slapped a deck on top of the flat roof. First floor flat owner then paid to fix the roof and had it upgraded to an actual roof terrace.

Albermarle

To be absolutely clear, the roof in question is the roof of the kitchen of the flat below you?
If I was the owner of that flat, I would not be very happy with someone walking around on the roof.