Where does the responsibility lie with this situation? Opinions please.

swingaloo

Messy situation-
I have a friend who bought her one bed upstairs flat using 'Right to Buy' many years ago.

A couple of years after buying she decided to apply for planning permission to turn it into a 2 bed duplex, putting a bedroom upstairs in the roof space and having the bathroom/toilet moved upstairs as well. The cost was quite excessive but she was happy as it was putting value on the property.

Planning permission was given and the work went ahead, inspected at each point by building control.
She then divorced and had the property valued to pay her ex out.
All good so far.

Then she meets a new partner and they want to buy a house together. So the now 2 bed flat is valued and put up for sale and a buyer is quickly found. The sale falls through but then she finds another buyer

Then it all goes wrong- She does not own the roof  space and so should not have done the conversion. The sale cannot go through and she loses the buyer. The agent now says they can only advertise as a one bed flat but, because the toilet and bathroom are up in the roof space (which she does not own) the property is not mortgageable. 

This is where opinions are needed as we all have differing thought on it

Friend says that she never knew she did not own the roof space and was never informed of that and that the deeds do not say she owns it but on the other hand they don't say that does not. She feels the council misled her because when she asked for planning permission to convert the roof space they never told her that she could not do it. 

Her partner thinks the council are at fault because they should have made her aware she did not own the space when they agreed to give planning permission. She wouldn't have spent thousands doing the conversion had she known. She is also annoyed as she paid off her ex with a large lump sum because the property was valued at a good figure before she found out she should not have converted the space.

She has explained all this to the council who have now told her that she now has a choice. She can buy the loft space at a sum which is way in excess of the sum she originally bought the flat for.
Or, she can put it all back as it was which would also cost a fortune as the stairs and bathroom would need removing and her large fitted kitchen would have to be altered to make way for the bathroom to come back downstairs. Either way she would need to spend thousands.

So where does the 'responsibility' lie-

Should the council have advised she could not convert the property?
Should the solicitor have explained she was not buying the roof space as part of the purchase of the property?
Was she wrong to assume that she owned the roof space?
Does any responsibility lie with the council?

They really want to move but are stuck there with things as they are at the moment. There has been a discussion about getting a 'Deed of Variation?) but apparently that is quite costly.

She feels the council should have told her when she applied for planning permission that it was not her property to convert. The council say that property sale and planning are 2 different departments so planning would not know she didn't own the roof space even though it was ex council property.
 
Her partner wants to see a solicitor to try to establish blame because he says that 'either way she is going to lose thousands for something that is not her fault'.  Im not sure that doing that wont just be throwing money away.

Can I ask for opinions please. Thank you.

silvercar

My answers in bold.

Should the council have advised she could not convert the property? No
Should the solicitor have explained she was not buying the roof space as part of the purchase of the property? No, why would they have thought she thought she was buying the roof space? Solicitors don’t even inspect the property, they may not have known there was a roof space.
Was she wrong to assume that she owned the roof space? Yes, she should have checked.
Does any responsibility lie with the council? No, planning and ownership are different departments.

If anyone should have suggested she look into it, it would be her surveyor when she bought (if she had a survey done). Now she has 2 options, either buy the roof space or sell as is. Accepting that a solicitor may (but may not) pick up on it. A surveyor is more likely to identify it, but not everyone has surveys, particularly on flats.

 questions, who does own the roof space? Is there a similar flat where this work has been done? Who values the roof space so highly, as it isn’t if any value to anyone else.

TheSpectator

All goes back to the original purchase under right to buy - what dis the deed say. Will say this is what solicitors are for (advising what you are actually buying)

swingaloo

Thank you for the replies. 
2 differing thoughts already-
The first saying she should have checked and the 2nd saying the solicitor should advise.

We have all  been discussing it for ages this afternoon and none of us are really in agreement.

35har1old

swingaloo said:

Thank you for the replies. 
2 differing thoughts already-
The first saying she should have checked and the 2nd saying the solicitor should advise.

We have all  been discussing it for ages this afternoon and none of us are really in agreement.

Who has the responsibility of maintaining the roof?

itsthelittlethings

Yeah they’re definitely two different departments so wouldn’t speak to each other. 

TheSpectator

TheSpectator said:

All goes back to the original purchase under right to buy - what dis the deed say. Will say this is what solicitors are for (advising what you are actually buying)

I perhaps should have caveated my comment that it depends on what questions were asked of the solicitor - if it's clear from the title deeds that the roof space wasn't included well that's down to your friend.

No fault on the council's part so and I can only see a costly legal battle whoever they want to blame with no guarantee of success.

swingaloo

35har1old said:

swingaloo said:

Thank you for the replies. 
2 differing thoughts already-
The first saying she should have checked and the 2nd saying the solicitor should advise.

We have all  been discussing it for ages this afternoon and none of us are really in agreement.

Who has the responsibility of maintaining the roof?

Thats another sticky point-

A year or so ago most of the property on the estate had work done on the roofs in 3 stages. Stage 1 and 2 were completed during which time my friend had been sent a letter telling her how much she was going to be expected to pay.
The tenant downstairs did not get a letter so from that would imply she was expected to contribute because she owned the roof?
However the 3rd phase of the work has been cancelled so she never had to pay anything. Does seem odd though, why she would be billed for it if it wasnt her responsibility.

Neil49

From what I have read above, the property is leasehold and the council owns the freehold. The lease should contain the details of the property and what can and can't be done to it.

Regardless of that, she never paid for the loft space when originally buying the flat and therefore should never have converted it. 

swingaloo

TheSpectator said:

TheSpectator said:

All goes back to the original purchase under right to buy - what dis the deed say. Will say this is what solicitors are for (advising what you are actually buying)

I perhaps should have caveated my comment that it depends on what questions were asked of the solicitor - if it's clear from the title deeds that the roof space wasn't included well that's down to your friend.

No fault on the council's part so and I can only see a costly legal battle whoever they want to blame with no guarantee of success.

I'm in agreement with that in terms of it being costly to fight it.
 When I asked if the deeds showed the roof space was included the reply I got was 'Well it doesn't say it is but it doesn't say its not'.'

born_again

swingaloo said:

TheSpectator said:

TheSpectator said:

All goes back to the original purchase under right to buy - what dis the deed say. Will say this is what solicitors are for (advising what you are actually buying)

I perhaps should have caveated my comment that it depends on what questions were asked of the solicitor - if it's clear from the title deeds that the roof space wasn't included well that's down to your friend.

No fault on the council's part so and I can only see a costly legal battle whoever they want to blame with no guarantee of success.

I'm in agreement with that. When I asked if the deeds showed the roof space was included the reply I got was 'Well it doesn't say it is but it doesn't say its not'.'

In the absence of a statement saying it does, then it's seems pretty clear they do not. 

You can hardly argue because it does not say you do, that you do...